TMI Blog1992 (11) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was called for hearing, the Tribunal may dispose of the appeal on merits after hearing the appellant. In the present case, the Tribunal has disposed of the appeal on merits. A question, therefore, arises whether the respondent has a right to file a petition for restoration of the appeal. Our attention was invited to rule 24 of the Tribunal rules by which the appellant is given the right to file a petition for restoration of the appeal if he did not appear when the case was called for hearing, provided he satisfies the Tribunal that there was sufficient cause for his non-appearance. It was submitted on behalf of the department that rule 25, in contrast to rule 24, did not give the right to the respondent to file a petition for restora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. The Court also held that there was no provision against the exercise of such power either in the Act or in the Rules nor was the exercise of such power in conflict with any of the provisions or the purpose or the functions of the Tribunal. The judgment of the Learned single Judge was affirmed by the Division Bench of the Calcutta High Court in ITO v. Murlidhar Sarda [1975] 99 ITR 485. The Division Bench held that for the reasons of the provisions of sub-section (1) of section 254 of the Act itself, the opportunity of being heard, spoken of in that provision of the Act, was essentially part of the jurisdiction which the Tribunal has been given by the statute. It was further held that when adequate and reasonable grounds for omissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision in rule 25 of the Rules for setting aside an ex parte order and posting it for rehearing, similar to the provision for restoration of an appeal dismissed for default under rule 24, is by itself indicative of the fact that the Legislature really wanted to make a deliberate distinction between the dismissal of an appeal for default on the one hand and the ex parte decisions on merits in the absence of the respondent on the other hand. We have already noticed the view expressed by the Supreme Court on the validity of rule 24 insofar as it enables the dismissal of an appeal before the Tribunal for default of appearance of the appellant. Apart from that, merely for the reason that there is no specific provision in rule 25 of the Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
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