TMI Blog2023 (8) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ch affirmation, modification or annulment shall not be an empty formality nor can it be mechanical, without the consideration of the grounds of appeal - When an appeal is dismissed for reason only of absence of the appellant or lack of effective prosecution, then the Tribunal should be found to have abdicated its powers and not followed the statutory mandate. There is no efficacious alternate remedy available as of now, against the appellate order, since the Tribunal, to which a further appeal is provided, has not been constituted. Leaving the Assessee/petitioner to the appellate remedy as and when the Tribunal is constituted, that too with a further direction to pay 20% of the disputed tax amount would unnecessarily prejudice the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid fact was also noticed by the Appellate Authority, which was an additional reason cited by the Appellate Authority to reject the appeal. It is pointed out that there is provided an appeal before the GST Tribunal and since the Tribunal has not yet been constituted, this Court in similar matters grants liberty to the assessee to approach the Tribunal as and when it is constituted and keeps in abeyance the recovery proceedings on deposit of 20% of the tax amount disputed. There is no cause for invocation of the extraordinary remedy under Article 226 of the Constitution of India, is the compelling submission; but for the above limited relief. 3. The appellate order dated 15.02.2023 is in an appeal filed against the order dated 01.11.2021, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t specifically emphasized the word thereon in sub-section (4) of Section 33, which required the Tribunal to afford an opportunity of hearing to both parties and make such orders thereon as it thinks fit. The word thereon , according to the Hon ble Supreme Court, clearly indicated that the Tribunal ought to go into the correctness or otherwise or the points decided by the departmental authorities in the light of the submissions made by the appellant. This exercise 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 ground that the party concerned has failed to appear (sic). The decisions in Hukumchand Mills Ltd. v. CIT; 63 ITR 232, CIT v. Mtt. Ar. S. Ar. Aru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. 7. The specific statutory mandate is that after hearing the appellant, the Appellate Authority is to make further enquiry, if found necessary and pass such orders as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against. Such affirmation, modification or annulment shall not be an empty formality nor can it be mechanical, without the consideration of the grounds of appeal. We observe so, specifically when the Appellate Authority is empowered to refuse the prayer for adjournment made by an appellant, if on three prior occasions, such adjournment has been allowed, in which cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the departmental representative have been heard by me. The grounds of appeal furnished by the appellant ear5lier have been perused. A serious consideration has been given to the same. The concerned appellant has been given several opportunities of hearing but there has been no action on his part towards disposal of this case. Earlier also the dates of hearing fixed in this case were 22.12.2021, 08.01.2022, 12.01.2023 and 15.02.2023 in order to afford opportunity to the appellant but the appellant intermittently filed time petitions. The matter is getting older. The appellant did not furnish the relevant evidence, documents, accounts etc nor did he appear and clarify this matter. This clearly shows that the appellant/taxpayer intends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restore the appeal to its files and the appellant shall appear before the authority on 04.05.2023. The Appellate Authority or its office shall fix a date of hearing on the said date, with due acknowledgment taken from the appellant; if the date of hearing is issued from the office, proceed with the hearing on the date fixed and dispose of the appeal on merits within two months from the date of last hearing. We also direct the petitioner to cooperate in the hearing of the appeal and even if there is absence of the appellant or his authorized representative on the date of hearing, the Appellate Authority shall consider the appeal on merits and pass a speaking order. The writ petition stands allowed with the above direction. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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