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2012 (12) TMI 991 - HC - Income TaxMaintainability of appeal - Dismissal of appeal for non-prosecution by ITAT - Held that:- In the instant case, as could be noted from the order impugned, that the Tribunal has chosen to dismiss the appeal on the ground of non-prosecution. It also noted that RPAD was sent and the same had returned with the remark of the postal department as none having claimed the same. Instead of deciding the matter on merits, it chose to dismiss the same for want of prosecution and this order in our opinion is contrary to the provision of law. When the Supreme Court decided the case of S. Chenniappa Mudaliar (1969 (2) TMI 10 - SUPREME Court), no amendment in Rule in the Income-tax Appellate Tribunal Rules was made as yet. Rule 24 of the Income Tax Rules, 1963 makes it abundantly clear that the Tribunal cannot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in person or through an authorised representative. It is incumbent upon the Tribunal to dispose of the appeal on merits after hearing the respondent and afterwards if the appellant appears and satisfy the Tribunal, sufficient cause for its non-appearance on the date of hearing, the Tribunal can set aside the ex parte order and restore the appeal. Thus the impugned order passed by the Tribunal is hereby quashed and set aside and the appeal is restored to the file of the Tribunal which shall decide the same afresh on merits - Decided in favour of assessee.
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