TMI Blog2019 (12) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the said judgment of the Hon'ble Supreme Court in the case of Balaji Steel Re-rolling Mills, which was binding on all the lower Courts and the Tribunals without exception and, therefore, the learned Tribunal was bound to decide the appeals on merits. Being the final fact finding body, a duty is cast on the learned Tribunal to decide the appeals on merits. Tribunals are not Constitutional Courts. At the same time, if repeated adjournments were sought, the learned Tribunal could impose some costs on the appellant, but the appeals could not have been dismissed for want of prosecution or without deciding the merits of the case even though ex-parte, if it becomes necessary. Appeal allowed - appeals restored. - C.M.A.Nos.3074, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 33 of the Income-tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 which gave power to the Tribunal to dismiss the appeal for want of prosecution. For ready reference, Section 33(4) of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 are reproduced below:- Section 33(4) of the Income Tax Act, 1922 33(4). The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. Rule 24 of the Appellate Tribunal Rules, 1946 24. Where on the day fixed for heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the CIT, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearance. 13) Applying the principles laid down in the aforesaid case to the facts of the present case, as the two provisions are similar, 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. The High Court also erred in law in upholding the order of the Tribunal. 14) We, therefore, set aside the order dated 18.01.2014 passed by the High Court of Judicature of Bombay, Bench at Aurangabad and also the order dated 22.08.2012 passed by the Tribunal and direct the Tribunal to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and posting the next date of hearing of the case, the Tribunal, in order to make it clear that the appeal will be positively taken on the next date, passed the above miscellaneous orders. So the ground put forward by the appellants that they received the copy of the miscellaneous orders on 05.10.2016 and therefore could not appear on 03.10.2016 is baseless and impermissible. If there was any direction in the miscellaneous order which the appellant had to comply within the next hearing date, the argument of the ld. Counsel would have some persuasive effect. The miscellaneous orders are nothing but orders of adjournments. It is the duty of the parties as well as the Counsels to take note of the next date of hearing when they seek adjournment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the Hon'ble Apex Court in the case of Balaji Re-rolling Mills Ltd., (Supra) cannot be used as a shelter for non-appearance and non-prosecution. In the absence of assistance from the Counsel appearing for appellant, even after specific direction, Tribunal has dismissed the appeals for non-prosecution. We find therefore no ground to interfere in the order passed by the Tribunal, for the reason that the appellants have been given sufficient chances for arguing their case on merits. 9. In the result, all the miscellaneous applications for restoration of appeals filed by the applicants are dismissed.'' 5. Having perused the record and after hearing the learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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