Gigabyte Technology (India)Private Limitedb v. Assistant Commissioner Of Income Taxcircle

IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 57 of 2015 Gigabyte Technology (India)Private LimitedB-411, BSEL Tech Park, Sector 30A, Vashi,Maharashtra – 400705Presently at :-807 & 808, 8[th] Floor, NamanMidtown, B-Wing, ElphinstoneRoad, Mumbai, Maharashtra- 400013.PAN : .. Appellant VERSUS Assistant Commissioner of Income TaxCircle-1, Margao, Goa..Respondent Mr. Vishal Kalra and Mr. Mahesh Amonkar, Advocates for theappellant. Ms. A. Dessai, Advocate for the respondent. CORAM:- F. M. REIS, &C. V. BHADANG, JJDATE: 30th November, 2015 ORAL JUDGMENT:(Per F. M. REIS, J.) Heard Shri Vishal Kalra, the learned Counsel for theappellant and Ms. Asha Dessai, the learned Counsel for therespondent. 2.Admit on the following substantial question of law : TXA57/15 “Whether the Tribunal in the fact and circumstances ofthe case, is justified to dismiss the appeal preferred bythe appellant for non-prosecution ?” 3.Ms. Dessai, the learned Counsel appearing for therespondent waives service. Heard forthwith with the consent ofthe learned Counsel for the parties. 4.Upon hearing the learned Counsel for the respectiveparties, it appears that the short point for consideration iswhether the appeal preferred by the appellant before the learnedIncome Tax Appellate Tribunal (Tribunal, for short) could havebeen dismissed for non-prosecution, without dealing with themerits of the controversy raised by the appellant before theTribunal. 5.The learned Counsel appearing for the appellant haspointed out that the appellant diligently pursued his remedybefore the learned Tribunal and in fact, on the relevant date, theappellant had produced a compilation of the documents and hadsought accommodation to proceed with the hearing of the appeal.The learned Counsel further submitted that the Tribunal haserroneously proceeded to dismiss the appeal for non-prosecution,without noting that the appellant was willing to proceed with thehearing of the appeal. The learned Counsel further submitted that TXA57/15 in any event, the Tribunal could not have dismissed the appeal fornon-prosecution as it is well settled in the judgment of the ApexCourt in the case of Commissioner of Income Tax Vs S.Chenniappa Mudaliar, reported in (1969)74 ITR 41 (SC) that nopowers to that effect are available to the Tribunal as the Tribunalhas to decide the issue on merits. The learned Counsel has alsobrought to our notice a judgment passed by this Court in the caseof Khushalchand B. Daga Vs. T. K. Surendran, 4[th] Income-Tax Officer, reported in (1972)85 ITR 48 (BOM). 6.Ms. Asha Dessai, the learned Counsel for therespondent has submitted that the appellant has already moved aMiscellaneous Application before the learned Tribunal to recallthe said order and there is no need to proceed with the aboveappeal as the learned Tribunal would examine such application, inaccordance with law. The learned Counsel, as such, submits thatthe question of proceeding with the above appeal, in suchcircumstances, is not at all necessary. 7.In reply to the submissions of the learned Counselappearing for the respondent, the learned Counsel appearing forthe appellant undertakes that he would withdraw theMiscellaneous Application before the Tribunal within a period of 8.Taking note of the contention of the learned Counselappearing for the appellant that the Miscellaneous Applicationfiled before the learned Tribunal would be withdrawn within aperiod of three weeks, the objection raised by the learnedCounsel appearing for the respondent on that count, would not atall survive. The only aspect, as such, to be examined is whetherthe learned Tribunal was justified to dismiss the appeal preferredby the appellant for non-prosecution. 7.In reply to the submissions of the learned Counselappearing for the respondent, the learned Counsel appearing forthe appellant undertakes that he would withdraw theMiscellaneous Application before the Tribunal within a period of 8.Taking note of the contention of the learned Counselappearing for the appellant that the Miscellaneous Applicationfiled before the learned Tribunal would be withdrawn within aperiod of three weeks, the objection raised by the learnedCounsel appearing for the respondent on that count, would not atall survive. The only aspect, as such, to be examined is whetherthe learned Tribunal was justified to dismiss the appeal preferredby the appellant for non-prosecution. 9.Taking note of the conduct of the appellant before thelearned Tribunal the appellant admittedly had produced a paperbook to proceed with the hearing of the appeal. As such, we findthat the learned Tribunal in the facts of the present case was notjustified to dismiss the appeal for non-prosecution. In any event,taking note of the observations in the judgment of this Court inKhushalchand B. Daga (supra) as well as the Apex Court in S.Chenniappa Mudaliar (supra), we find that the learned Tribunalwas not justified to dismiss the appeal for non-prosecution.Without going into the rival contentions on merits and in theinterest of justice, we find it appropriate to quash and set asidethe impugned order passed by the learned Tribunal dated12/02/2015 and remand the matter to the learned Tribunal for TXA57/15 fresh decision, after affording the parties an opportunity of beingheard, in accordance with law. The substantial question of law isanswered, accordingly. 10.In view of the above, we pass the following order : ORDER (i)The appeal is partly allowed. (ii)The impugned order dated 12/02/2015 passed by the learned Tribunal is quashed and set aside.by the learned Tribunal is quashed and set aside. (iii)ITA No. 429/PNJ/2013 is restored to the file of the learned Tribunal.the learned Tribunal. (iv)The learned Tribunal is directed to dispose of the said appeal, after hearing the parties in accordance with law.the said appeal, after hearing the parties in accordance with law. (v)All the contentions of both the parties on merits, are kept open.merits, are kept open. SMA C. V. BHADANG, J. F. M. REIS, J.