TMI Blog2021 (6) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... law and not merely dismissing of appeal on the ground that party concerned had failed to appear considering the Rule 24 of the Income Tax Appellate Tribunal Rules, 1946. Therefore, in the light of the legal position enunciated above, we are of the considered opinion that the order passed by the Tribunal is not in consonance with the law laid by the Hon ble Supreme Court and plain provisions of Rule 24 of the Income Tax Appellate Tribunal Rules. Even the Jurisdictional High Court in the case of Bharat Petroleum Corporation Limited [ 2013 (10) TMI 1085 - BOMBAY HIGH COURT] held that the dismissal of appeal by the Tribunal on default of non-prosecution is a mistake which can be rectified u/s 254(2) of the Act. On the similar lines, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the premise on which the Tribunal has dismissed the appeal is totally contrary to the facts on record. In the above circumstances, it is prayed for recalling of the appeal. 3. When the matter was called on, none appeared on behalf of the assessee despite due service of notice. 4. We heard the ld. Sr. DR and perused the contents of the present Miscellaneous Application and the orders passed by this Tribunal in ITA No.2237/PUN/2013 for assessment year 2006-07. On perusal of the order passed by the Tribunal, it is clear that the appeal was dismissed for non-prosecution as well as on the premise that defects in the appeal remains uncured without going into the merits of the issue, in the appeal. 5. The approach of the Tribunal is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... com 431 (Madras). 6. Recently, the Hon ble Orissa High Court in the case of Rabindra Kumar Mohanty Vs. Registrar ITAT (Orissa) reported in 432 ITR 158 after referring to the above precedents held as follows : Article 265 of the Constitution mandates that no tax can be collected except by authority of law. Appellate proceedings are also laws in strict sense of the term, which are required to be followed before tax can legally be collected. Similarly, the provisions of law are required to be followed even if the tax payer does not participate in the proceedings. No assessing authority can refuse to assess the tax fairly and legally, merely because the tax payer is not participating in the proceeding. Hence, dismissal of appeals by ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Appellate Tribunal Rules. Even the Jurisdictional High Court in the case of Bharat Petroleum Corporation Limited referred supra held that the dismissal of appeal by the Tribunal on default of non-prosecution is a mistake which can be rectified u/s 254(2) of the Act. On the similar lines, the decision of the Hon ble Delhi High Court in the case of CIT vs. Ansal Housing Construction Ltd., 274 ITR 131, the decision of the Hon ble Kerala High Court in the case of M. S. Joseph Michael Bros. vs. ITAT, 199 ITR 466 and CIT vs. ITAT, 120 ITR 231 (Ker.). 8. Therefore, it constitutes mistake apparent from the record, capable of being rectified in exercise of jurisdiction vested with the Tribunal u/s 254(2) of the Income Tax Act, 1961. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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