TMI Blog1981 (10) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.. The Tribunal dismissed the appeal for default of appearance of the petitioner under rule 59 of the Madhya Pradesh General Sales Tax Rules, 1959. The contention of the learned counsel for the petitioner in support of the petition is that the said rule in so far as it empowers the appellate authority to dismiss an appeal on default is in excess of the rule-making power, being in conflict with the provisions of the Madhya Pradesh General Sales Tax Act, 1958, and is ultra vires and void. 3.. For examining the correctness of the above contention raised by the learned counsel, it is necessary to refer to the relevant provisions in the Act and the Rules. Sub-section (1) of section 38 confers right of appeal against an original order of assessment with or without penalty. Sub-section (2) of the same section confers a right of second appeal against an order passed in first appeal. Sub-section (5) of section 38 indicates the orders which can be passed in first or second appeal under sub-section (1) or (2). Sub-section (6) relates to finality of these orders. These sub-sections read as follows: "(5) Subject to such procedure as may be prescribed and after such further inquiry as it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d authority either in person or through a person duly authorised by the appellant or the applicant as required by sub-section (1) of section 21, the said authority may dismiss the appeal or application for revision or may decide it ex parte as it thinks fit. (4) When an appeal or revision is dismissed or decided ex parte under subrule (3) the appellant or the applicant, as the case may be, 'may' within 30 days from the date of communication of such order apply to the appellate or revising authority for re-admission or re-hearing of the appeal or revision, as the case may be, and if the appellate or revising authority is satisfied that the appellant or the applicant or a person duly authorised under sub-section (1) of section 21, was prevented by any sufficient cause from appearing when the appeal or revision was called for hearing it may re-admit or re-hear the appeal or revision, as the case may be, upon such terms including terms as to cost and conditions as it may think fit." 4.. A perusal of sub-rules (3) and (4) of rule 59 will go to show that if on the date fixed for hearing or any date to which the hearing may be adjourned the appellant fails to appear, the appellate aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or default of appearance and also empowering it to restore the appeal in case sufficient cause is shown for non-appearance, is a rule dealing with procedure to be followed in disposing of appeals. In Povser v. Minirs 50 LJ 555 the Court of Appeal held that rule 17 of order XVI of the County Court Rules, 1875, which provided that any judgment of non-suit, unless the judge otherwise directs, shall have the same effect of a judgment upon the merits for the defendant, was valid under section 32 of the County Courts Act, 1856, which empowered the County Court judges "to frame rules and orders for regulating the practice of the courts, and forms of proceedings therein". It was laid down in that case that "practice or procedure denotes the mode of proceeding by which a legal right is enforced". The decision of the Court of Appeal in this case supports our conclusion that a rule empowering the appellate authority to dismiss an appeal for default of appearance coupled with the power to restore the appeal in case the appellant shows sufficient cause for non-appearance on the date of hearing, is a rule of procedure to be followed by the appellate authority in disposing of appeals. The words " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1946, which empowered dismissal of an appeal by the Tribunal for default of appearance, was held to be ultra vires being repugnant to the provisions of section 33(4) of the Income-tax Act, 1922. Section 5-A(8) of the Income-tax Act, 1922, empowered the Income-tax Appellate Tribunal to regulate its own procedure. Section 33(4) of the said Act provided that "the Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit". It was held by the Supreme Court that the word "thereon" referred to the subject-matter of appeal before the Tribunal and that the words "pass such orders thereon" obliged the Tribunal to decide the appeal on merits, and therefore, the rule enabling the Tribunal to dismiss an appeal for default of appearance was in conflict with section 33(4). The Supreme Court also observed that if the Tribunal dismissed an appeal for default of appearance without going into the merits, the appellant's right of invoking the provisions relating to reference to the High Court would be violated. The Supreme Court, however, held that the rule did not offend section 5-A(8) by which the Tribunal was empowere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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