Iapl/52/2019 Of Virendra Bahadur Saxena v. Income Tax Officer

Court No. - 3 Case :- INCOME TAX APPEAL No. - 52 of 2019 Appellant :- Virendra Bahadur SaxenaRespondent :- Income Tax OfficerCounsel for Appellant :- Krishna Dev VyasCounsel for Respondent :- , , ,Manu Ghildyal Hon'ble Naheed Ara Moonis,J.Hon'ble Saumitra Dayal Singh,J. Heard Shri Krishna Dev Vyas, learned counsel for theappellant and Shri Manu Ghildyal, learned counsel for theRevenue. Present appeal has been filed by the assessee-appellantunder Section 260A of the Income Tax Act, 1961(hereinafter referred to as 'Act') against the order of theIncome Tax Appellate Tribunal, New Delhi in ITA No.1598/Del./2018 for the A.Y. 2008-09. By that order, the Tribunal has dismissed the appeal of theassessee, in default. No consideration has been made to themerits of the case. The present appeal has been pressed on the followingquestion of law:- "Whether it is open to the Tribunal to dismiss an appeal, withoutaddressing itself to the merits of issues in appeal, because one of theparties has not appeared before the Tribunal?" The facts are undisputed. Against the order of theCommissioner of Income Tax, Aligarh dated 08.11.2017,the assessee had preferred the aforesaid appeal before theTribunal. The first date of hearing in the appeal was05.12.2018, when it was adjourned. Thereafter, the partiesare under dispute whether the assessee had noted the further date fixed in the appeal. According to the assessee-appellant, its representative who sought and was grantedadjournment on the date 05.12.2018 did not make anynoting on the order sheet and was not informed of the nextdate fixed, whereas, the Tribunal has observed that suchdate was noted by the representative of the assessee. In view of the recital made in the order of the Tribunal, itmay be assumed that the same is correct and such date hadbeen noted by the representative of the assessee. Yet, byvirtue of the language of Section 254 (1) of the Act readwith Rule 24 of the Appellate Tribunal Rules, 1963, theTribunal may decide an appeal only on merits. Though, theTribunal proceeded ex-parte against the appellant onaccount of unexplained absence, at the same time, theTribunal could not dismiss an appeal for default withoutlooking into the merits of the grounds raised in the appeal. The tribunal being a creature of statute and being bound byits own rules of procedure, the impugned order is found tobe contrary to the law that binds the Tribunal. The question, as framed, is answered in the negative i.e. infavour of the assessee-appellant and against the Revenue. Accordingly, the appeal stands allowed. Order Date :- 5.10.2021Saurabh