TMI Blog2019 (5) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of proviso to Rule 24 of the Rules, 1963 cannot also be invoked in this case. In fact, the substantial provision, viz., Section 254 (1) mandates the Appellate Tribunal to pass orders on an appeal after giving both the parties to the appeal an opportunity of bearing heard. The impugned order does not disclose that the same was passed on merits after giving both the parties the opportunity of being heard. Sub-section (2) of Section 254 enabling the Tribunal to rectify any mistake or to amend any order, is not an answer to the failure to comply with sub-section (1) of Section 254. In fact, if the substantial provision contained in the statute mandates the disposal of an appeal on merits, the Rules cannot empower a mere dismissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned in the writ petition is an order on merits, the petitioner has to file only a regular appeal under Section 260A of the Income Tax Act, 1961 (for short Act, 1961 ). It is further contended by the learned senior standing counsel that if the impugned order is construed as an order of dismissal for default, then the appropriate course of action open to the petitioner is to file an application in terms of the proviso to Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 (for short Rules, 1963 ). A writ petition, according to the learned senior standing counsel, is not maintainable. 4. We have carefully considered the above submissions. 5. It is seen from the impugned order that the same was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without going into the merits of the dispute. 9. Therefore, cases of this type do not fall either under Section 254 (2) of the Act, 1961 or under the proviso to Rule 24 of the Rules, 1963. Hence, the Writ Petition has to be held to be maintainable. 10. Once the maintainability of the writ petition is held in favour of the petitioner, then the next question to be decided is as to whether the impugned order could be sustained. 11. It is seen from the impugned order that the appeal has been dismissed for non-prosecution on the very first date. Though we cannot say that the Tribunal did not have the power to do so, this is not the way to answer substantial issues. 12. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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