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This Income Tax Appeal has been filed by the assessee for the assessment year 2008-09 against the order of the Income Tax Appellate Tribunal, Lucknow Bench “A” Lucknow dated 16.9.2013. By that order the Tribunal has practically dismissed the appeal of the assessee in default.
The appeal is admitted on the following question of law.
(i) Whether on the facts and circumstances of the case the ITAT Lucknow was correct not to decide the case of the appellant on merits as per Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963, even if the appellant or his authorized representatives was absent on the date of hearing?”
It is the case of the assessee that in the appeal before the Tribunal he had raised six specific grounds none of which have been examined or adjudicated by the Tribunal.
Sri Suyash Agarwal has placed reliance of Rule 24 of the Income Tax (Appellate Tribunal) Rules 1963, which has been considered in the earlier judgment of this Court in the Income Tax Appeal No. 316 of 2008 wherein the Court has held as under:-
“It appears a little strange that when the assessee either himself or through his authorized representative is not attending the hearing to argue the case, still the Tribunal has to decide the appeal on merits. The amendment to the Rule, however, does not admit any doubt. The Tribunal did not have discretion to dismiss the appeal in default. The order to treat the appeal, after adjourning the admission-hearing, on so many dates, virtually amounts to dismissing the appeal for default. The Tribunal could have considered the merits of the case, and may not have found worth admitting, but it did not have power to dismiss the appeal in default. Unless Rule 24 is amended, restoring the powers of the Income Tax Appellate Tribunal to dismiss the appeal in default, the Tribunal does not have any power to dismiss the appeal without adverting to the merits of the appeal.”
Following the above judgment, we answer the question raised in favour of the assessee and against the department.
The appeal is, accordingly allowed. The appeal before the Tribunal stands restored.
The Tribunal shall proceed and decide the appeal on merits in accordance with law.