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2021 (6) TMI 260 - AT - Income TaxRectification of mistake u/s 254 - dismissal of appeal by the Tribunal on default of non-prosecution - HELD THAT:- On perusal of the order passed by the Tribunal, it is clear that the appeal was dismissed for non-prosecution as well as on the premise that defects in the appeal remains uncured without going into the merits of the issue, in the appeal. The approach of the Tribunal is contrary to the law laid down by the Hon’ble Supreme Court in the case of CIT Vs. S. Chenniappa Mudaliar [1969 (2) TMI 10 - SUPREME COURT] wherein held that the Tribunal is bound to give the decision on merits as questions of facts and law and not merely dismissing of appeal on the ground that party concerned had failed to appear considering the Rule 24 of the Income Tax Appellate Tribunal Rules, 1946. Therefore, in the light of the legal position enunciated above, we are of the considered opinion that the order passed by the Tribunal is not in consonance with the law laid by the Hon’ble Supreme Court and plain provisions of Rule 24 of the Income Tax Appellate Tribunal Rules. Even the Jurisdictional High Court in the case of Bharat Petroleum Corporation Limited [2013 (10) TMI 1085 - BOMBAY HIGH COURT] held that the dismissal of appeal by the Tribunal on default of non-prosecution is a mistake which can be rectified u/s 254(2) of the Act. On the similar lines, the decision of the Hon’ble Delhi High Court in the case of CIT vs. Ansal Housing & Construction Ltd.[2004 (5) TMI 22 - DELHI HIGH COURT] the decision of High Court in the case of M. S. Joseph Michael & Bros. [1991 (11) TMI 18 - KERALA HIGH COURT] and INCOME-TAX APPELLATE TRIBUNAL AND ANOTHER [1979 (4) TMI 22 - KERALA HIGH COURT] Therefore, it constitutes mistake apparent from the record, capable of being rectified in exercise of jurisdiction vested with the Tribunal u/s 254(2) - Miscellaneous Application filed by the assessee is allowed.
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