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TMI Blog2020 (9) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... ed W.P.(C)No.17013 of 2020 praying to set aside Ext.P1 assessment order and Exts.P4 and P6 consequential orders, to restore Ext.P3 appeal and decide the same on merits and for other reliefs. Ext.P4 is the order passed on Ext.P3 appeal by the Income-tax Appellate Tribunal, dismissing the appeal for non-prosecution, on the ground that assessee failed to appear. The learned Single Judge admitted the writ petition and granted an interim stay of recovery subject to the condition that the appellant pays Rs. 10.5 lakhs within one month. The direction to deposit Rs. 10.5 lakhs, which according to the appellant amounts to 61% of the demand, has been challenged in the writ appeal. 2. Heard Sri Biju George, learned counsel for the appellant and Sri J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 33 of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 which gave power to the Tribunal to dismiss the appeal for want of prosecution. For ready reference, Section 33(4) of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 are reproduced below: Section 33(4) of the Income Tax Act, 1922 "33. (4) The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner." *** Rule 24 of the Income Tax Appellate Tribunal Rules, 1946 "24. Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income Tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the conclusion that under Section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short circuit the same by dismissing it for default of appearance." 5. It can be seen from the paragraphs extracted above that the Supreme Court considered the issue with reference to the provisions of the Income-tax Act, 1922 and the Appellate Tribunal Rules, 1946, dealing with the powers of the Income-tax Appellate Tribunal also and held that looking at the substantive provisions of the Act, the Tribunal should not have dismissed the appeal for want of prosecution and it ought to have decided the appeal on merits, even if the appellant or its counsel was not present when the appeal was taken up for hearing. Rule 24 as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal back to file. But the same was also dismissed by the Tribunal as per Ext.P6 order, for the reason that the same is filed beyond time. 7. In the light of the binding judgment of the Apex Court and the provisions contained in Section 254 of the Income Tax Act, 1961 and Rule 24 of the Income Tax (Appellate Tribunal)Rules, 1963, the writ appeal and the writ petition are allowed. We hold that Ext.P4 order passed by the Appellate Tribunal is not issued in accordance with law, and the same is set aside. Since Ext.P4 order is not an order passed on merits, there is no requirement of the appellant approaching the Tribunal for setting aside the ex parte order and restoration of the appeal, as per the Proviso to Rule 24. Ext.P6 order which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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