ITAT cannot dismiss an Appeal merely because tax payer was not participating in proceeding

Rabindra Kumar Mohanty Vs Registrar, ITAT (Orissa High Court)

Article 265 of the Constitution mandates that no tax can be collected except by authority of law. Appellate proceedings are also laws in strict sense of the term, which are required to be followed before tax can legally be collected. Similarly, the provisions of law are required to be followed even if the tax payer does not participate in the proceedings. No assessing authority can refuse to assess the tax fairly and legally, merely because the tax payer is not participating in the Hence, dismissal of appeals by ITAT for non- persecution is wholly illegal and unjustified.

If we see this issue through the prism of the Principles of natural justice, an appellate authority is required to afford an opportunity to be heard to the It has been held in plethora of cases that “right to natural justice” is a personal right, either a person can waive it or a person may not avail it. Merely because a person is not availing his right of natural justice, it cannot be a ground of refusal to perform statutory duty of deciding appeal by the Tribunal.

Applying the principles laid down in the aforesaid cases to the facts of the present case, 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.

FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT

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