TMI Blog2004 (5) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... is no substantial question of law and, therefore, this revenue’s appeal is required to be dismissed - - - - - Dated:- 24-5-2004 - Judge(s) : B. C. PATEL., BADAR DURREZ AHMED. JUDGMENT The judgment of the court was delivered by B.C. Patel C.J.- This appeal is preferred by the Revenue against the order whereby the application of the assessee for recalling an order passed ex parte, was allowed by the Income-tax Appellate Tribunal (for short hereafter referred to as "the Tribunal") on September 10, 2003 in MA No. 99/Del/2003 in I.T.A. No. 2189/Del/1997 for the assessment year 1993-94. The assessee made out a case before the Tribunal, inter alia, requesting to recall the order on the ground that the said order was ex parte contendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal." The apex court in the case of CIT v. S. Chenniappa Mudaliar [1969] 74 ITR 41, considered the question but on different facts. In that case, the assessee, for the profits earned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not appear when the appeal is called on for hearing, the Tribunal may dismiss the appeal for default." In the case of Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232, the word "thereon" in section 33(4) came to be interpreted by the apex court pointing out that it restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by section 31 of the Act. In the case of CIT v. S. Chenniappa Mudaliar [1969] 74 ITR 41 (SC), it was pointed out by the court that the provisions contained in the Act about making a reference on questions of law to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal [vide Shri Bhagwan Radha Kishen v. CIT [1952] 22 ITR 104 (All) and Mangat Ram Kuthiala v. CIT [1960] 38 ITR 1 (Punj)]. There is a conflict of opinion among the High Courts whether there is any inherent power to restore an appeal dismissed for default under the Civil Procedure Code (Mulla, Civil Procedure Code, volume II, pages 1583, 1584). It is unnecessary to resolve that conflict in the present case. It is true that the Tribunal's powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to, and identical with the powers of an appellate court under the Civil Procedure Code. Assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for restoration of an appeal dismissed in default on sufficient cause being shown. However, there was no such provision with respect to an appeal heard and disposed of ex parte in the absence of the respondent under rule 21, (J. K. Synthetics Ltd. was the respondent in the appeal before the CEGAT). Relying upon the decision of the apex court in the case of CIT v. S. Chenniappa Muaaliar [1969] 74 ITR 41, it appears that the Tribunal decided the matter. It found that where a respondent had not availed of the opportunity to put forward his case, the CEGAT was not absolved of its responsibility to decide. It held: "Therefore, even if respondent was not present when the appeal was called for hearing, would not absolve the Tribunal from decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 22 of the Industrial Disputes (Central) Rules, 1957. Considering the rule, the apex court pointed out in para. 4. of J. K. Synthetics Ltd., AIR 1996 SC 3527 that the Tribunal to proceed ex parte carried with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. Although rule 21 of the CEGAT Rules does not expressly state that an order on an appeal heard and disposed of ex parte can be set aside on sufficient cause being shown for the absence of the respondent, it does not mean that the CEGAT has no power to do so. In the present case, rule 24 specifically provides for recalling the order made ex parte while in the case of S. Chenniappa Mudaliar. [1969] 74 ITR 41 (SC) though th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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