I. Jaheer Aliproprietorm/S. J.a. Electrical Engineering Worksno v. Commissioner Of Income Tax (Appeals) O/O. Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-03-2015 I. Jaheer AliProprietorM/s. J.A. Electrical Engineering WorksNo.59/0, Meenakshi NagarNear Central JailSalem - 636 007.. Petitioner Versus 1. Commissioner of Income Tax (Appeals) O/o. Commissioner of Income Tax (Appeals) No.3, Gandhi Road Salem - 636 007 Petition filed under Article 226 of The Constitution of Indiapraying for a Writ of Certiorarified Mandamus calling for therecords of the first respondent dated 30.12.2014 bearing Order inI.T.A. No. 284/2010-11 and to quash the same with the consequentialdirection to the first respondent to provide an opportunity ofhearing for the disposal of appeal on merits in accordance with law. The petitioner seeks to quash the order dated 30.12.2014 of thefirst respondent, in and by which, the first respondent dismissedthe appeal preferred by the petitioner, exparte. 2. Admittedly, the appeal filed by the petitioner was taken upfor hearing by the first respondent on 06.09.2012, 24.09.2012,22.01.2013 and 20.08.2014. In all those hearings, there was norepresentation for the petitioner. Therefore, the first respondentcame to the conclusion that the petitioner is not interested inprosecuting the appeal and consequently dismissed the appeal on30.12.2014 for non-prosecution. 3. The learned counsel appearing for the petitioner wouldcontend that as against the order dated 24.12.2010 of the secondrespondent, the petitioner has preferred the appeal under Section143 (3) of the Income Tax Act before the first respondent.According to the learned counsel for the petitioner, the firstrespondent, in exercise of powers conferred under Section 251 of theIncome Tax Act may confirm, vary, reduce or enhance an order ofassessment as contemplated under Section 251 (2) of the Act.However, the first respondent has no power to dismiss the appeal fornon-prosecution. However, it is submitted by the learned counselfor the petitioner that the non-appearance of the petitioner ortheir representative on the hearing dates is neither wilful norwanton. Therefore, in the interest of justice, one more opportunityshall be given to the petitioner to adjudicate the appeal on meritsbefore the first respondent. 4. On the above contention, this Court heard the learnedstanding counsel for the respondents, who supported the order dated30.12.2014 of the first respondent and prayed for dismissal of thewrit petition. 4. On the above contention, this Court heard the learnedstanding counsel for the respondents, who supported the order dated30.12.2014 of the first respondent and prayed for dismissal of thewrit petition. 5. I heard the learned counsel for both sides and perused thematerials placed on record. Even though Section 251 of the IncomeTax Act imposes an obligation on the appellate authority/the firstrespondent to dispose of an appeal filed before it on merits, in thegiven facts and circumstances of the case, it cannot be said thatthe order dated 30.12.2014 passed by the first respondent is inviolation to the said provisions of the Income Tax Act. It is notas though the first respondent passed the order dated 30.12.2014without affording sufficient opportunity to the petitioner. Theappeal was posted for hearing on 06.09.2012, 24.09.2012, 22.01.2013and 20.08.2014 and in all those hearings, there was norepresentation for the petitioner. Therefore, the first respondenthas rightly passed the order dated 30.12.2014 dismissing the appealpreferred by the petitioner for non-prosecution. When the appellantdid not turn up to agitate the appeal on merits, the firstrespondent can only conclude that the assessee is not interested toprosecute the appeal. Therefore, this Court is not inclined tointerfere with the order passed by the first respondent. However,taking note of the fact that the petitioner has no occasion tochallenge the validity of the order passed by the second respondenton 24.12.2010 and as the appeal was dismissed by the firstrespondent for non-prosecution, I feel that in the interest ofjustice, one more opportunity shall be given to the petitioner. 6. In the light of the above, the writ petition is disposed ofby setting aside the order dated 30.12.2014 of the appellateauthority/first respondent. No costs. The first respondent isdirected to take up the appeal preferred by the petitioner forhearing on 24.04.2015 on which date, the petitioner shall appearbefore the first respondent without fail. The first respondentshall thereafter hear the petitioner and pass orders on merits andin accordance with law, as expeditiously as possible. It is madehttps://hcservices.ecourts.gov.in/hcservices/clear that if the petitioner did not appear before the firstrespondent on 24.04.2015, this order shall stand revokedautomatically without reference to this Court and consequently the order dated 30.12.2014 passed by the first respondent shall standrestored . Sd/- Assistant Registrar True Copy To Sub Assistant Registrar 1. Commissioner of Income Tax (Appeals) O/o. Commissioner of Income Tax (Appeals) No.3, Gandhi Road Salem - 636 0072. The Assistant Commissioner of Income Tax Circle 1, Salem - 636 007+1 cc to Mr.H.Nazirudeen, Advocate,SR.15024+1cc to Mr.T.Pramodkumar chopala, Advocate,SR.15310.sk(co)krd 9/4 WP No. 5637 of 2015