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TMI Blog2021 (2) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... Your Lordships be pleased to issue writ of certiorari or any other writ, direction, order in the nature of certiorari to quash and set aside the order dated 31.07.2018 passed by the Hon'ble Tribunal in Case No.M.A No.157/2017 arising out of ITA No.1263/2011, which is annexed at Annexure A to this petition in the interest of justice. (B) Your Lordships be pleased to issue writ of certiorari or any other writ, direction, order in the nature of certiorari to quash and set aside the order dated 12.12.2014 passed by the Hon'ble Tribunal in the ITA No.1263 of 2011 which is annexed at Annexure B to this petition and further to restore the appeal to the file of the Tribunal in the interest of justice. (C) Your Lordships be pleased to stay the operation and implementation of the impugned order dated 12.12.2014 passed by the Hon;ble Tribunal in the ITA No.1263 of 2011 at Annexure B to this petition pending admission, hearing and final disposal of this petition in the interest of justice. (D) Your Lordships be pleased to stay the operation and implementation of demand notice. 2. We need not delve much into the facts of this litigation as our order dated 02.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrospective effect in case of the assessee. 4. In the aforesaid context, strong reliance has been placed on the decision of the Supreme Court in the case of M./P. Steel Corporation vs. Commissioner of Central Excise, reported in (2015) 7 SCC 58 and a Division Bench of the Madhya Pradesh High Court in the case of District Central Coop. Banik Ltd. vs. Union of India, reported in (2017) 398 ITR 161 (MP). The Madhya Pradesh High Court has relied upon the decision of the Supreme Court in the case of M.P. Steel Corporation (supra). 5. We have thought fit to pass this short order so that the respondent can respond to the same on the next date of hearing. 6. Let fresh notice be issued to the respondent for final disposal, returnable on 9th February, 2021. The respondent shall be served directly through Email. 7. Mr. Gupta, the learned counsel, shall furnish one set of his entire paper-book at the earliest to Ms. Mauna Bhatt, the learned senior standing counsel who would be appearing for the respondent as the matter is from Ahmedabad. 3. Mr.M.R.Bhatt, the learned Senior Counsel assisted by Mrs.Mauna M. Bhatt, the learned Sr. Standing Counsel has appeared on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the appellant does not appear in person or through an authorized representative when the appeal is on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his nonappearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal. 19. The Apex Court in the case of Commissioner of Income-tax vs. S. Chenniappa Mudaliar (supra), prior to the amendment of Rule 24 (1946 Rules) was deciding this very question as to whether the Tribunal is bound to give proper reasons of question of fact as well as law on merits and whether it can dismiss the appeal on the default of appearance. It was also deciding as to whether Rule 24 of 1946 Rules, which provided for dismissal of appeal for failure of appellant to appear is ultra vires as being in conflict with the provision of Section 33(4) of 1922 Act. It is answered in affirmation. 20. In the case of Rajendra Prasad Borah vs. Income-Tax Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneously held that the assessee s appeal is not maintainable in law. 22. In the case of Anil Kumar Agrahari vs. Commissioner of IncomeTax (supra), the Madhya Pradesh High Court was examining the dismissal for non-prosecution of appeal by the Tribunal and it held categorically that the Tribunal could not have dismissed the appeal without going into the merits of the case, by rejecting the adjournment application filed by the counsel. And, the matter was remanded back to the Tribunal for adjudication on merits. It also took note of decision rendered in Rajendra Prasad Borah vs. IncomeTax Appellate Tribunal and others (supra) as also the decision rendered by the Apex Court in Commissioner of Income-tax vs. S. Chenniappa MudaliarI(supra) so also the decision of the Tribhuwan kumar and others vs. Commisioner of IncomeTax and another (supra), and held that the Tribunal could not have dismissed the appeal without adverting to the merits of the case and on the line of the decisions of Gauhati and Rajasthan High Courts, it set aside the order of Tribunal dismissing the appeal for want of prosecution. 23. In the instant case, as could be noted from the order impugned, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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