TMI Blog2020 (3) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax fairly and legally, merely because the tax payer is not participating in the proceeding. Hence, dismissal of appeals by ITAT for non-persecution is wholly illegal and unjustified. If we see this issue through the prism of the Principles of natural justice, an appellate authority is required to afford an opportunity to be heard to the appellant. It has been held in plethora of cases that right to natural justice is a personal right, either a person can waive it or a person may not avail it. Merely because a person is not availing his right of natural justice, it cannot be a ground of refusal to perform statutory duty of deciding appeal by the Tribunal. We are of the considered opinion that the Tribunal could not have dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the order dated 22.02.2016 of the CIT (A) 2, Bhubaneswar, the petitioner approached the Income Tax Appellate Tribunal (hereinafter called the Tribunal ), Cuttack Bench, Cuttack vide ITA No. 300/CTK/2016 for the assessment year 2009- 10. The Ld. Tribunal issued notice for hearing on 06.07.2017 and on the said date, the authorised representative of the petitioner filed an adjournment application and the case was placed for hearing on 30.08.2017 accordingly. However, on 30.08.2017 neither the petitioner nor his authorised representative or his counsel were present. The Tribunal, therefore, dismissed the appeal for want of prosecution. The petitioner preferred an appeal by way of filing W.P.(C) No.2487 of 2019 before this Court even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent. Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 Provides that where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may dismiss the appeal for default or may hear it ex-parte. In the said case the High Court of Madras held that under Section 33 (4), the Tribunal was bound to dispose of the appeal on merits, whether the Petitioner was present or not. The language of Section 33(4) and in particular the use of the word thereon signifies that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han v. The ITAT Anr in W.P. No. 8126 of 2018 . 9. In yet another land mark judgment rendered by the Full Bench of Madras High Court in State of Tamil Nadu v. Arulmurugan Co., [(1982) 51 STC 381] wherein it was held that the appellate authorities perform precisely the same functions as the assessing authority. The said Bench expressed the view that a tax appeal is a rehearing of the entire assessment and it cannot be equated to adversary proceedings in appeal in civil cases. In fact, the assessing authority is not the taxpayer s opponent . Procedurally speaking, in a tax appeal, the appellate authority is very much committed to the assessment process. Similar views have been taken by the Supreme Court in line of cases like S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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