Appellate Authority cannot dismiss appeal for non-prosecution due to non-appearance of Assessee or authorised representative

Nav Nirman Construction Vs Union of India (Patna High Court)

The Hon’ble Patna High Court in the case of Nav Nirman Construction v. Union of India [CWJC No. 16940 of 2023 dated December 6, 2023] set aside the appellate order and directed that the Appeal be restored before the appellate authority, thereby holding that appellate authority is not empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative as appellate authority has a duty and obligation to take into consideration the merits of the matter, examine the grounds raised by the appellant even if the appellant or authorised representative presence is not recorded; and decide the issue on merits.

Facts:

Nav Nirman Construction (“the Petitioner”) has filed the writ petition challenging the appellate order dated January 28, 2023, (“the Impugned Order”) wherein the appeal was dismissed by the Revenue Department (“the Respondent”) on the ground of non-prosecution wherein the Petitioner or Petitioner authorised representative was absent during the appellate proceedings.

Issue:

Whether Appellate Authority is empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative?

Held:

The Hon’ble Patna High Court in the case of CWJC No. 16940 of 2023 held as under:

• Relying upon the judgement of Hon’ble Patna High Court in the case of Purushottam Stores v. State of Bihar and Ors. [CWJC No. 4349 of 2023 dated April 25, 2023], noted that, the sub-sections (8), (9), (10), (11), and (12) of the Central Goods and Services Act, 2017(“the CGST Act”) and corresponding provisions of the Bihar GST Act, the appellate authority has a duty and obligation to take into consideration the merits of the matter, examine the grounds raised by the Appellant even if the Appellant or authorised representative presence is not recorded; and decide the issue on merits.
• Further Noted that, the appellate authority the powers of conducting further enquiry for deciding the appeal would be relinquished, as and when the appeal is dismissed for non-prosecution.
• Held that, the Impugned Order is set aside.
• Directed that, the appeal be restored before the Respondent appellate authority.
• Further Directed that, the Petitioner shall cooperate in the hearing of the appeal and even if there is absence of the appellant or his authorized representative on the date of hearing, the Respondent appellate authority shall consider the appeal on merits and pass a speaking order.

Conclusion: The Patna High Court’s ruling in Nav Nirman Construction vs. Union of India reinforces the principle that the Appellate Authority cannot dismiss an appeal for non-prosecution solely based on the non-appearance of the assessee or their authorized representative. The judgment underscores the Appellate Authority’s duty to delve into the merits of the matter and make decisions based on the grounds raised by the appellant, ensuring a fair and just process.

FULL TEXT OF THE JUDGMENT/ORDER OF PATNA HIGH COURT

The petitioner challenges the appellate order which dismissed the appeal for non-prosecution. The appeal was filed in time and the appellate authority merely for the reason of absence of the petitioner or the authorised representative rejected the appeal.

2. We have already held in Purushottam Stores The State of Bihar & Ors; CWJC No. 4349 of 2023 decided on 25.04.2023; looking at the provisions of the Bihar Goods and Services Tax Act especially sub-sections (8), (9), (10), (11) and (12) of Section 107 of the Act, that the Appellate Authority has a duty and an obligation under the statute to look into the merits of the matter and also examine the grounds raised by the appellant, even if there is no presence recorded of the appellant before the Appellate Authority and decide the issue on merits. The Appellate Authority by dismissing the appeal for non-prosecution would be abdicating its powers especially looking at the provisions where the Appellate Authority has been empowered to conduct such further enquiry as found necessary to decide the appeal, which decision also shall be on the points raised.

3. We, hence, set aside the order dated 28.01.2023 (Annexure-P/3) and direct the restoration of appeal before the Appellate Authority.

4. The petitioner shall appear before the Appellate Authority on 10.01.2024. The Appellate Authority or its office shall fix a date of hearing on the said date, with due acknowledgment taken from the appellant; if the date of hearing is issued from the office, proceed with the hearing on the date Patna High Court CWJC No.16940 of 2023 dt.06-12-2023 fixed and dispose of the appeal on merits within three months from the date of last hearing. We also direct the petitioner to cooperate in the hearing of the appeal and even if there is absence of the appellant or his authorized representative on the date of hearing, the Appellate Authority shall consider the appeal on merits and pass a speaking order.

5. The writ petition stands allowed with the above direction.

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