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2019 (7) TMI 1441 - KARNATAKA HIGH COURTEx- parte order of the ITAT dismissing the appeal - none had appeared on behalf of appellant and as such appeal came to be dismissed and finding recorded by the tribunal in that regard is to the effect that matter was also heard exparte qua the assessee - HELD THAT:- Case of appellant or its authorized representative does not appear when the matter is called for hearing tribunal can dispose of said appeal on merits after hearing the respondent. Though in the instant case Tribunal has recorded that it has heard the counsel appearing for the revenue, order dated 31.03.2017 passed by tribunal does not disclose as to the reason for rejecting the grounds urged in appeal memorandum and no supporting reasons have been assigned. It is in this background, the expression “dispose of the appeal on merits” occurring Rule 24 would acquire significance. In other words, there is a duty cast on the Tribunal to adjudicate the claim on merits even in the absence of parties or their authorized representative. In the instant case, it would not end at this stage, an application was filed for recall of said order. For recalling the order, reasons assigned by the counsel appearing on behalf of assessee was, he had noted down the date of hearing erroneously as 30.04.2017 instead of 30.03.2017. The possibility of said error occurring cannot be ruled out, particularly when number of cases are being handled by the authorized representative of assessee. Under such circumstances, the technicalities, if any, has to give way for substantial justice or in other words, on the ground of technicalities, substantial justice cannot be sacrificed. To put it differently, an opportunity, if afforded to the assessee to put forth his case before the Tribunal, no prejudice or loss would have caused to the revenue, but on the other hand, appeal could have been adjudicated by the Tribunal on merits and finality could have been given.
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