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TMI Blog2018 (9) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... e is made out to condone the delay in filing the appeal. Consequently, delay is condoned. I.A. No. 2278/2018 stands disposed of. With the consent of learned counsel for the parties, the appeal is finally heard. Grievance raised by the appellant is against the order dated 17/11/2017 passed by the Appellate Board, Commercial Tax, Bhopal, whereby an appeal preferred by the appellant under Section 46 of the Madhya Pradesh Value Added Tax Act, 2002, has been dismissed for want of prosecution. Exception is taken to the order on the ground that it is beyond the competence of the Appellate Board to dismiss the appeal for want of prosecution. Reference is made to Rule 4-S of the Madhya Pradesh Value Added Tax Rules, 2006, which stipulates :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not present when the appeal is taken up for hearing. 11. A similar question came up for consideration before this Court in CIT v. S. Chenniappa Mudaliar, 1969 (1) SCC 591 wherein this Court considered the provisions of Section 33 of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 which gave power to the Tribunal to dismiss the appeal for want of prosecution. For ready reference, Section 33(4) of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 are reproduced below:- Section 33(4) of the Income Tax Act, 1922 "33(4). The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has otherwise been properly filed, for default without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income Tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 default of appearance." 13. Applying the principles laid down in the aforesaid case to the facts of the present case, as the two provisions are similar, we are of the considered opinion that the Tribunal could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. The High Court also erred in law in upholding the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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