TMI Blog2012 (12) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - TAX APPEAL NOS. 133 & 134 OF 2012 - - - Dated:- 4-12-2012 - AKIL KURESHI AND MS. SONIA GOKANI, JJ. Vijay S. Ranjan, for the Appellant Ms. Paurami Sheth, for the Respondent ORDER Ms. Sonia Gokani, J. The appellant, aggrieved by the order of the Income Tax Appellate Tribunal dated 4.8.2006, filed the present appeal under Section 260A of the Income Tax Act (for short the Act ), raising following substantial question of law for our consideration: Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in dismissing the appeal preferred by the present appellant as not maintainable in view of the decision of the Income-tax Appellate Tribunal, Delhi Bench, in the case of CIT v. Multipla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being decided answering the question in favour of the appellant assessee. 8. Undisputed facts as have emerged in this case of the appellant assessee, are that the appellant filed the return of income for the assessment year 1998-99 and 1999-2000 respectively on 30.11.1998 and 28.12.1999 along with audited Statement of Accounts and Tax Audit Report. 9. The Assessing Officer on scrutiny assessment in both the years, determined the total income by detailed adjudication. 10. Aggrieved by these assessments, the same were challenged before the CIT(Appeals), Mumbai, which partly allowed these appeals. Further aggrieved by the same, the appellant challenged these orders by preferring the appeals for the year 1998-99 and 1999-2000 being ITA NO.2962, 2963 AHD.2003. 11. The appeals for the assessment years 1998-99 and 1999 to 2000 were originally filed by the appellant assessee before the Mumbai Tribunal, which were eventually transferred to Ahmedabad. 12. One can note communication of the present appellant addressed to the Tribunal on 20.10.2008, 4.11.2008, 16.4.2009, 29.9.2009, 8.4.2010 and 25.10.2010. 13. It appears that at the time of hearing of appeals of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce the order of the Tribunal as under: These are appeals filed by the assessee and are directed against two separate orders of CIT(A) dated 28.01.2003 30.01.2003 for Asst. Years 1998-99 and 1999-2000 respectively. 2. Notice of hearing was sent through RPAD which has been received back from the postal authorities with the remark N/C . However, none was present on behalf of assessee on the fixed date of hearing. Therefore, in the circumstances we presume that assessee is not interested in prosecuting its appeals. Hence we dismiss the appeals filed by the assessee in-limine for want of prosecution following the decision of Tribunal in the case of CIT v. Multiplan India (P.) Ltd. 38 ITD 320(Delhi). 17. The question, therefore, would be as to whether the Tribunal was justified in so doing it. Apart from the facts that the present appellant continuously and persistently followed the said issue, it appears that these appeals came to be dismissed without the same being decided on merits. 18. It would be profitable, at this stage, to refer to Rules 19, 20 and 24 of the Income-tax Rules, which read as follows: Rules 19, 20 and 24 of the Income-tax (Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in disposing of the assessee's appeals in the manner as delineated in the impugned order, cannot be sustained. Apart from the fact that, section 254(earlier section 33) of the Act makes it incumbent on the learned Tribunal to dispose of the appeals on merits as has been enunciated by the apex court in CIT v. S. Chenniappa Mudaliar [1969] 74 ITR 41, rule 24 as it stands, per se does not empower the learned Tribunal to dismiss an appeal for default in the absence of the appellant. The learned Tribunal's reliance on the decision of the Income-tax Appellate Tribunal, Delhi, rendered in CIT v. Multiplan India (P.) Ltd. [1991] 38 ITD 320, is apparently misplaced in the teeth of the decision of the apex court in CIT v. S. Chenniappa Mudaliar [1969] 74 ITR 41. 21. In the case of Tribhuwan kumar (supra), the Rajasthan High Court while interpreting Rules 19,20 and 24 of 1963 Rules also examined the decision of Delhi Bench rendered in the case of Multiplan India (P.) Ltd. ( supra) by holding thus: 6. Having considered the aforesaid three provisions, we are unable to comprehend the view of the Tribunal that the assessee's appeal was not maintainable in view of rules 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal 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. However, reliance of the Tribunal on the decision of the Delhi Bench in the case of Multiplan India (P.) Ltd. (supra) is erroneous and, therefore, requires to be set aside. In the instant case, it can be noted from the letters addressed by the present appellant to the Tribunal that it was awaiting transfer of both the appeals of 1998-99 and 1999-2000 since CIT (Appeals) had relied upon such orders of earlier years. 25. If the record of these appeals were necessary for proceedings with the appeals, which were pending of the year 2001 to 2002, 2002-03, in the instant case, it was a matter of transfer from Mumbai Bench to the Ahmedabad Bench of these appeals and the present appellant has made out sufficient cause indic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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