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Case Law Details

Case Name : Bharat Petroleum Corporation Limited Vs Income Tax Appellate Tribunal (Bombay High Court)
Appeal Number : Writ Petition No. 1740 of 2013
Date of Judgement/Order : 23/10/2013
Related Assessment Year :
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Whether the Tribunal has power in terms of Rule 24 of the Tribunal Rules to dismiss an appeal before it without considering the merits of the appeal and only on the ground for want of prosecution?

It is contended by the petitioner that the order passed on 6 December2007 on its appeal was an order passed in breach of Rule 24 of the Tribunal’s Rules. We find that when the appellant is not present before the Tribunal when the appeal is called out for hearing the Tribunal could either adjourn the hearing of the appeal in its inherent jurisdiction or in terms of Rule 24 of the Tribunal Rules dispose of the appeal on merits after hearing the respondent.

In this case the Tribunal has dismissed the petitioner’s appeal for non prosecution. The Tribunal has not considered the merits nor heard the respondents on merits before dismissing the appeal. Thus theTribunal has not exercised its inherent jurisdiction of adjourning the appeal or in terms of Rule 24 of the Tribunal Rules of deciding the appeal on merits after hearing the respondents. We find that in terms of Rule 24 of the Tribunal Rules the option of dismissing an appeal for default is not available to the Tribunal. In fact, Income Tax Appellate Tribunal Rules 1946 as amended in 1948 (Tribunal Rules 1946) provided for dismissal of appeal by the Tribunal for default on the part of the appellant before it. Rule 24 of the Tribunal Rules 1946 as amended in 1948 reads as under:

“24­ Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is alled on for hearing, the Tribunal may, in its discretion either dismiss the appeal for default or may hear it ex­parte.”

The aforesaid Rule allowing the Tribunal to dismiss an appeal for non prosecution/default was a subject matter of challenge before the Supreme Court in CIT vs. S. Chenniappa Mudaliar (1969) 74 ITR Page 41 and the Apex Court held that such a provision in the rule was ultra vires the provisions of the parent Act viz. Section 33(4) of the Income Tax Act, 1922 which mandated the Tribunal to decide the appeal on merits. Therefore, we find that Rule 24 of the Tribunal Rules as applicable in this case advisedly does not provide for dismissal of appeal for default.

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