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TMI Blog2013 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... dismiss appeal in limine - The income tax appeals are allowed - The matter is remanded to be decided on merits – Decided in favor of Assessee. - Income Tax Appeal No. - 164 of 2013, Income Tax Appeal No. - 165 of 2013 - - - Dated:- 30-7-2013 - Hon'ble Sunil Ambwani And Hon'ble Surya Prakash Kesarwani,JJ. For the Appellant : Tapish Rastogi,Vinod Kumar Ratogi For the Respondent : C.S.C., I.T. ORDER 1. We have heard Shri Vinod Kumar Rastogi for the appellant-company. Shri Ashok Kumar appears for the department. 2. In these Income Tax Appeals under Section 260-A of Income Tax Act, 1961 arising out of an order dated 30.8.2012 passed by Income Tax Appellate Tribunal, Agra dismissing ITA Nos.92 93/Agra/2012 for assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub- section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees." 5. The provisions of the Income Tax Act, 1922, providing for an appeal, and Rule 24 of the Appellate Tribunal Rules, 1946, came up for consideration of the Supreme Court in Commissioner of Income Tax, Madras vs. S. Chenniappa Mudaliar, Madurai 1974 ITR 41 in which the Supreme Court held as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conflict with sub.-section (4) of s. 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Beach of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative." 6. Rule 24 of the Appellate Tribunal Rules, 1963 as substituted by IT (Appellate Tribunal) (Amendment) Rules, 1987 w.e.f. 1.8.1987 reads as follows:- "Hearing of appeal ex parte for default by the appellant. 24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed as he was under threat by the local unwanted elements, who were interfering in his business, and that for these reasons the assessee could not collect relevant material and accounts being inside his business premises and hence failed to cooperate with the assessing authorities. 9. We do not propose to enter into the merits of the grounds of petitioner's absence form the proceedings as we find that both the questions raised in the appeal are covered by the opinion expressed by the Supreme Court in Commissioner of Income Tax, Madras v. S. Chenniappa Mudaliar, Madurai (Supra). The Supreme Court ruled that the Income Tax Appellate Tribunal is not competent to dismiss the appeal for want of prosecution. The judgment was given explainin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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