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TMI Blog1995 (11) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... 28, 1993, passed by the Appellate Assistant Commissioner (C.T.), Kancheepuram, in Appeal Nos. 38/90/CST and 39/90/CST, dismissing them for default. The last date on which the appeals were posted for hearing was October 28, 1993. Before that date, the appeals were adjourned for a number of times. The orders dismissing the appeals for default state all those dates. Even on October 28, 1993, the appellant-petitioner did not turn up. Hence, the Appellate Assistant Commissioner took the view that there was no alternative but to dismiss the appeals. Thus, he did not go into the merits of the appeals and dismissed them on the ground that neither the appellant nor its counsel was present. The learned single Judge has rejected the writ petitions on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment after such further inquiry as may be directed; or (iii) pass such other orders as he may think fit; or (b) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal against an order of the assessing authority, the assessing authority shall have the right to be heard either in person or by a representative." Thus, according to the aforesaid provisions, it is open to the Appellate Assistant Commissioner to confirm, reduce, enhance or annul the assessment or the penalty or either to set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed or pass such other orders as he may think fit or in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee either in person or through the representative. The power conferred under sub-section (3) of section 31 of the Act upon the Appellate Assistant Commissioner is to decide the appeal on merits and in so deciding the appeal, he can confirm, reduce, enhance or annul the assessment or the penalty or both or remit the matter for fresh disposal. Sub-rule (5) of rule 27 of the Rules also does not enable the Appellate Assistant Commissioner to dismiss the appeal for default, but it only says that he shall after affording the appellant reasonable opportunity of being heard pass such order as he thinks fit. In our view, the matter is no more res integra. The Supreme Court in Commissioner of Incometax v. S. Chenniappa Mudaliar [1969] 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. Commissioner of Income-tax [1967] 63 ITR 232 the word 'thereon' in section 33(4) restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words 'pass such orders as the Tribunal thinks fit' include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by section 31 of the Act. The provisions contained in section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atarama Aiyar, J., in Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 indicating the necessity of the disposal of the appeal on the merits by the Appellate Tribunal. This is how the learned Judge had put the matter in the form of interrogation: 'How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the court should be sought?' Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short-circuit the same by dismissing it for def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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