TMI Blog1996 (8) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... g of this Misc. Application, none appeared on behalf of the assessee. It appears that the assessee is not interested in pursuing the matter. In view of this, we decline to accede to the request of the assessee and, accordingly, the Misc. Application is dismissed. 4. In the result, the Misc. Application, filed by the assessee, is dismissed. Per Mehta, AM 5. I have perused the order passed by my learned Brother, the Judicial Member, but find myself in disagreement with him on various grounds which are being discussed as under : A perusal of the record shows that the Misc. Application was filed on 11th January, 1994 primarily on the ground that the order in appeal was passed by the Bench ex parte without hearing the assessee on the ground that the counsel remained absent despite notice sent by Registered post. The Misc. Application was fixed for bearing on a number of occasions beginning April 1994 but adjourned on one ground or the other, but most of these being the absence of the assessee or his counsel. However, on the last date of hearing, viz.,17-2-1995when the matter was called for hearing there was nobody present on behalf of the assessee and the matter was proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see only on the ground that he failed to appear on the date of hearing and this meant that he was not interested in 'pursuing the matter'? 2 If the answer to the aforesaid is in the negative then whether on the facts of the case the ex parte order passed on 16-11-1993 was required to be recalled for a hearing de novo in the light of the reasons advanced by the assessee for non-appearance on the said date?" THIRD MEMBER ORDER This Miscellaneous Application has come up before me for my opinion as a Third Member under section 255(4) of the Income-tax Act, 1961 as the Members who heard the Miscellaneous Application originally could not agree. They referred the following points of difference :--- "1. Whether, on the facts and in the circumstances of the case and in accordance with the provisions of law the Tribunal could dismiss the miscellaneous application filed by the assessee only on the ground that he failed to appear on the date of hearing and this meant that he was not interested in 'pursuing the matter'? 2. If the answer to the aforesaid is in the negative then whether on the facts of the case the ex parte order passed on 16-11-1993 was required to be recalled for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the assessee by Registered Post A.D. This time also, none was present on behalf of the assessee. The Miscellaneous Application was heard by the Tribunal ex parte on17-2-1995wherein Shri M.K. Jha, Departmental Representative, appeared on behalf of the Revenue. The learned Judicial Member, Shri R.K. Gupta, passed an order dismissing the Miscellaneous Application by observing as under :--- "3. At the time of hearing of this Miscellaneous Application, none appeared on behalf of the assessee. It appears that the assessee is not interested in pursuing the matter. In view of this, we decline to accede to the request of the assessee and, accordingly, the Miscellaneous Application is dismissed. 4. In the result, the Miscellaneous Application filed by the assessee is dismissed." 4. The learned Accountant Member, Shri R.M. Mehta, passed a dissenting order dated13-6-1995. In that order, the learned Accountant Member observed that, in his opinion, this does not appear to be the correct approach as even in respect of an ex parte disposal, the Tribunal was obliged to consider dispassionately the contents of the Miscellaneous Application and the evidence furnished vis-a-vis non-appeara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in S. Chenniappa Mudaliar v. CIT [1964] 53 ITR 323 (SB). The said judgment was affirmed by the Hon'ble Supreme Court in the case of CIT v. S. Chenniappa Mudaliar [1969] 74 ITR 41. The Hon'ble Supreme Court held that Rule 24 of the Appellate Tribunal Rules, 1946, as amended in 1948, in so far as it enables the dismissal of an appeal before the Income-tax Appellate Tribunal for default of appearance of the appellant, clearly comes into conflict with section 33(4) of the Indian Income-tax Act, 1922 and is, therefore, ultra vires. Later on, the said Rule 24 was substituted with effect from1-8-1987. Under the so substituted rule 24, there is no provision for dismissal of an appeal for appellant's default. The said Rule with effect from1-8-1987empowers the Tribunal to dispose of the appeal on merits after hearing the respondent where the appellant does not appear either in person or through an authorised representative. Even in the absence of the appellant, the Tribunal is expected to go into the matter itself, apply its mind and thereafter give its decision. It has to record reason in support of its decision. An adjudication on the merits of the case is essential to enable the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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