Income Tax Appellate Tribunal - Chennai
Deen Dayal Medical And Educational ... vs Addl. Cit, Chennai on 10 July, 2024
आयकर अपीलीय अिधकरण, 'डी' यायपीठ,चे ई IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, CHENNAI ी महावीर सह, उपा य एवं ी जगदीश, लेखा सद य के सम BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI JAGADISH, ACCOUNTANT MEMBER िविवधया िचकासं/ M.A. No.149/CHNY/2023 (arising in I.T.A. No.3331/Mds/2016) M/s. Deen Dayal Medical The Additional Commissioner and Educational Trust, v. of Income Tax, No.61, D.D. Nagar Bus Stop, Chennai.
Kunnavalam Post, [Chennai to Tirupathi National Highway], Tiruvallur Tk & Dt., Tiruvallur - 631 210.
[PAN: AAATD 2757M]
(अपीलाथ /Applicant) ( यथ /Respondent)
अपीलाथ क ओरसे /Applicant by : Shri N. Arjun Raj, Advocate
यथ क ओरसे/Respondent by : Shri P. Sajit Kumar, JCIT
सुनवाई क तारीख/Date of he aring : 17.05.2024
घोषणा क तारीख /Date of Pronouncement : 10.07.2024
आदेश /O R D E R
PER MAHAVIR SINGH, VICE PRESIDENT:
By way of this petition under Rule 24 of Income Tax Appellate Tribunal Rules, 1963 (hereinafter the 'Tribunal Rules')the assessee wanted to recall the order of the Tribunal dated 31.01.2017 in ITA No.3331/Mds/2016, the appeal was dismissed by Tribunal for non-
prosecution of appeal by following the Delhi Tribunal decision in the 2 M.A No.149/CHNY/2023 case of Multiplan (India) Ltd., reported in 38 ITD 320 and the judgment of Hon'ble Madhya Pradesh High Court in the case of late Tukojirao Holkar reported in 223 ITR 480.
2. At the outset, the ld.counsel for the assessee Shri N. Arjun Raj pointed out that the Registry has pointed out defect that this miscellaneous application is time barred by 2281 days and condonation petition has not been filed. The ld.counsel for the assessee first of all argued that the condonation provision will not apply to the petition filed u/s.24 of the Tribunal Rules and he narrated the facts.
3. The ld.counsel stated that the assessee filed appeal before the Tribunal in ITA No.3331/Mds/2016 against the order of PCIT, Central-
2, Chennai passed u/s.12AA(3) of the Income Tax Act, 1961 (hereinafter the 'Act') passed vide C.No.2860A/C-2/2013-14 dated 30.09.2016. This appeal was dismissed by the Tribunal vide order dated 31.01.2017. Against dismissal of this appeal for non-
prosecution, assessee moved miscellaneous application before Tribunal and this miscellaneous application was registered as MA No.19/CHNY/2018 arising out of ITA No.3331/Mds/2016 and this 3 M.A No.149/CHNY/2023 miscellaneous application was dismissed vide order dated 13.04.2018 by observing as under:-
"6. We have heard rival contentions. In the petition, the assessee has very well accepted that the Tribunal has given three opportunities. It is an admitted fact that, despite service of notice, the assessee did not come forward to put his appearance on the date of hearing fixed in this case. Since the assessee filed the present petition on 16.01.2018, which is clearly beyond the time limit allowed under the Act, we are of the considered opinion that the petition filed by the assessee before the Tribunal is not maintainable. Accordingly, the petition filed by the assessee is dismissed."
The ld.counsel pointed out that the Tribunal also dismissed the miscellaneous application as time barred and also for non-
prosecution. Now, the assessee has moved this petition under rule 24 of Tribunal Rules on 30.10.2023 which is registered as present M.A No.149/CHNY/2023. The ld.counsel for the assessee stated that the subject matter of appeal before ITAT in the order dated 31.01.2017 relates to the issue of correctness of the withdrawal of registration granted by CIT(Exemption) and passed in term of section 12AA(3) of the Act by the PCIT, Central-2, Chennai dated 30.09.2016. The ld.counsel pointed out that the Tribunal vide order dated 13.04.2018 has dismissed the said miscellaneous application filed by the petitioner on the ground that the said miscellaneous application was filed after the time limit prescribed under the provisions of section 254(2) of the Act, which envisages filing of miscellaneous application within six months from the end of the 4 M.A No.149/CHNY/2023 month in which the order was passed. Now, the ld.counsel for the assessee places reliance upon provisions of Rule24 of Tribunal Rules which confers power to recall ex-parte order, even though passed on merits, if the assessee demonstrates reasonable cause for their non-
appearance before the Bench at the appointed date of hearing. The ld.counsel stated that now the assessee wants to invoke Rule 24 of Tribunal Rules with a prayer for reinstating the assessee's appeal by recalling the ex-parte order under consideration for deciding the same on merits, because the Tribunal has dismissed the assessee's appeal for want of prosecution and for this, he placed reliance on the provisions of section 254(2) of the Act and Rule 24 of the Tribunal Rules. The ld.counsel for the assessee also relied on the decision of Hon'ble Delhi High Court in the case of Golden Times Services (P) Ltd., vs. DCIT reported in 422 ITR 102. The ld.counsel also relied on the decision of Mumbai Bench of this Tribunal in MA No.69/Mum/2021, order dated 06.08.2021, wherein the Tribunal has considered exactly identical situation.
4. On the other hand, the ld.Senior DR stated that the assessee has not explained sufficient cause for not appearing before the Tribunal in the course of hearing in ITA No.3331/Mds/2016 and even during the hearing of M.A. No.19/CHNY/2018. The ld.Senior DR 5 M.A No.149/CHNY/2023 stated that the miscellaneous application filed by assessee was duly heard and dismissed vide order dated 13.04.2018 but assessee during the course of hearing of said miscellaneous application, did not raise any ground regarding Rule 24 of Tribunal Rules nor explained the sufficient cause. The present petition has been filed after several years of the above miscellaneous application and this goes to the root of the finality of the proceedings. Further, the Senior DR also argued that Rule 24 of Tribunal Rules has to be read in harmony with the provisions of section 254(2) of the Act and hence, the limitation period of six months has to be strictly followed.
5. We have heard rival contentions and gone through facts and circumstances of the case. The facts are admitted and there is no dispute. Admittedly, the Tribunal has dismissed the appeal ex-parte and for non-prosecution of appeal or want of prosecution only and not on merits. We have gone through Rule 24 of Tribunal Rules and the relevant is being reproduced for the sake of clarity:-
"24. Hearing of appeal ex-parte for default by the appellant.- Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent:
Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal 6 M.A No.149/CHNY/2023 was called on for hearing, the Tribunal shall make an order setting aside the ex-parte order and restoring the appeal."
We noted that the reasons given for non-appearance before the Tribunal in the original proceeding was for the reason beyond the control of the assessee hereunder and in this regard, it was submitted that there was no power vested with the Tribunal to pass an order without adjudicating the issues captured in the grounds of appeal forming part of statutory Form No.36. By going through the provisions of Act i.e., section 254(2) which prescribes the time limit and in our view, it will not operate in the scenario where the Tribunal dismissed the appeal before it for want of prosecution in as much as the said time limit prescribed in the said section ought to be read in the context of the date of receipt of order and not in the case of ex-
parte order, which is passed for want of prosecution. In our view, the appellate authorities should adjudicate the issues on merits of the case, which is essential for higher courts to hear an appeal and the appellate authorities could not have dismissed the same solely on account of non-appearance of a party but should have been decided on merits. As in the present case, the assessee trust is faced with the situation where it cannot exercise its remedy of filing a statutory appeal u/s.260A of the Act since the order dated 13.01.2017 dismissing the appeal of the assessee does not adjudicate on merits 7 M.A No.149/CHNY/2023 of the case. Various High Courts have decided the issue, wherein it is held that for the assessee to file an appeal under the provisions of Section 260A of the Act before High Courts, it is required to satisfy that the case involves of a substantial question of law. The provisions of Rule 24 of the Tribunal Rules mandates that the Tribunal to decide the appeal on merits. Even the Hon'ble Delhi High Court in the case of Golden Times Services (P) Ltd., supra has categorically stated that the sufficient cause for non-appearance of the petitioner company at the time of disposal of appeal, as provided in the proviso to Rule 24 of the Tribunal Rules has lost its meaning because of the approach adopted by the Tribunal, especially, when there is no time limit provided in Rule 24 of the Tribunal Rules. We noted that the Hon'ble Delhi High Court has considered this issue in great detail in paras 13 to 17 as under:-
13. From the above noted provisions, it emerges that the Section and the Rule mandates the communication of the order to the parties. Thus, the date of communication or knowledge, actual or constructive, of the orders sought to be rectified or amended under Section 254(2) of the Act becomes critical and determinative for the commencement of the period of limitation.
The ITAT has not applied its mind on this aspect and has been swayed by the literal and mechanical construction of the words "six months from the end of the month in which the order was passed". The ITAT failed to even delve into the question whether the affected party, either actually or constructively, was in knowledge of the order passed by the ITAT.
14. The Supreme Court, in the case of D. Saibaba v. Bar Council of India, (2003) 6 SCC 186, had an occasion to consider a similar question in the context of Advocates Act, 1961 for exercising the remedy to review/reference/appeal. In the said case, the expression used in the 8 M.A No.149/CHNY/2023 provision was "sixty days from the date of that order". The Court noticed several other decisions, rendered under different acts and came to the conclusion that the expression "the date of that order" must be construed as meaning the date of the communication or knowledge, actual or constructive of the order sought to be reviewed. The relevant portion of the said judgment has been extracted hereinunder:
"9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart.
10. An identical point came up for the consideration of this Court in Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer [AIR 1961 SC 1500 : (1962) 1 SCR 676] . Section 18 of the Land Acquisition Act, 1894 contemplates an application seeking reference to the court being filed within six months from the date of the Collector's award. It was held that "the date of the award" cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words "the date of the award" occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even 9 M.A No.149/CHNY/2023 filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words "from the date of the Collector's award" was held to be unreasonable. The Court assigned a practical meaning to the expression by holding it as meaning the date when the award is either communicated to the party or is known by him either actually or constructively.
11. The view taken in Raja Harish Chandra Raj Singh case [AIR 1961 SC 1500 : (1962) 1 SCR 676] by a two-Judge Bench of this Court was affirmed by a three-Judge Bench of this Court in State of Punjab v. Qaisar Jehan Begum [AIR 1963 SC 1604 : (1964) 1 SCR 971] . This Court added that the knowledge of the award does not mean a mere knowledge of the fact that an award has been made; the knowledge must relate to the essential contents of the award.
12. In Asstt. Transport Commr. v. Nand Singh [(1979) 4 SCC 19] the question of limitation for filing an appeal under Section15 of the U.P. Motor Vehicles Taxation Act, 1935 came up for the consideration of this Court. It provides for an appeal being preferred "within thirty days from the date of such order". The taxation officer passed an order on 20-10-1964/24-10-1964 which was received by the person aggrieved on 29-10-1964. The appeal filed by him was within thirty days -- the prescribed period of limitation, calculated from 29-10-1964, but beyond thirty days of 24-10-1964. It was held that the effective date for calculating the period of limitation was 29- 10-1964 and not 24- 10-1964.
13. In Raj Kumar Dey v. Tarapada Dey [(1987) 4 SCC 398] this Court pressed into service two legal maxims guiding and assisting the court while resolving an issue as to calculation of the period of limitation prescribed, namely, (i) the law does not compel a man to do that which he could not possibly perform, and (ii) an act of the court shall prejudice no man. These principles support the view taken by us hereinabove. Any view to the contrary would lead to an absurdity and anomaly. An order may be passed without the knowledge of anyone except its author, maybe kept in the file and consigned to the record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the 10 M.A No.149/CHNY/2023 order would be lost by limitation though the person aggrieved or affected does not even know what order has been passed. Such an interpretation cannot be countenanced.
14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed."
(emphasis supplied)
15. The assessee had challenged the ex parte order dated 18.10.2016 and consequently, keeping in view, the aforesaid decisions, we are of the considered opinion that the starting point of limitation provided under Section 254 (2) of the Act has to commence from the date of the actual receipt of the judgment and order passed by the ITAT which is sought to be the reviewed.
16. Pertinently, adjudication on the merits of the case by the ITAT is essential for this Court to hear an appeal and the ITAT could not have dismissed the same solely on account of non-appearance of a party. As a result, as of today, the petitioner company is faced with the situation where it cannot exercise its remedy of filing the statutory appeal under Section 260A of the Act, since order dated 18.10. 2016, dismissing the appeal of the appellant, does not adjudicate on the merits of the case. For the assessee to file an appeal under the said provision before this Court, it is required to satisfy that the case involves a substantial question of law. As the order is not touching upon the merits of the case, it deprives this Court to evaluate, if any, substantial question of law under Section 260A of the Act arises on merits, thereby impinging upon assessee's right to get the issue decided by the final fact finding authority. Thus, the approach adopted by the ITAT in dismissing the application for recall of an order, cannot be countenanced, particularly, since Rule 24 of the ITAT Rules, extracted hereinabove mandates the ITAT to decide the appeal on merits. In fact this approach has rendered the liberty granted in the order dated 18th October, 2016 as nugatory. The sufficient cause for non-appearance of the petitioner company at the time of disposal of the appeal, as provided in the proviso to Rule 24 of the ITAT Rules has also lost its meaning because of the approach adopted by the ITAT, especially, when there is no limitation 11 M.A No.149/CHNY/2023 provided in Rule 24 of the ITAT Rules. The ITAT has chosen to rely upon its own decision in Commissioner of Income-Tax vs. Multi Plan India (P) Ltd. 38 ITD 320 (Del) and Estate of Late Tukojirao Holkar vs. CWT: 223 ITR 480 (M.P), which is completely misplaced. The ITAT has misread the provision of law and has erroneously dismissed the application for recall. It was necessary for the ITAT to exercise its jurisdiction and afford an opportunity of rehearing the appeal that had been dismissed in the absence of the appeal. Even otherwise, we are of the view that it was the duty and obligation of the ITAT to dispose of the appeal on merits after giving both the parties an opportunity of being heard. The ITAT should have been conscious of the fact that the appellant was not afforded the opportunity to argue the case on merits and for this reason it had given the liberty to apply afresh, while dismissing the appeal for non-prosecution. There was thus no cogent reason for the tribunal not to entertain the application for recall. The ITAT has ignored the decision of the Supreme Court in CIT vs. S.Chenniappa Mudaliar (supra) in the correct perspective.
17. For the foregoing reasons, the course adopted by the ITAT at the first instance, by dismissing the appeal for non-prosecution, and then compounding the same by refusing to entertain the application for recall of the order, cannot be sustained. We, therefore have no hesitation in quashing the impugned order. Accordingly, the present petition is allowed. The order dated 30.08.2019 is quashed and the matter is remanded back to the ITAT with a direction that they shall hear and dispose of ITA No. 6739/De1/2014 on merits. The parties shall now appear before the ITAT on 05.02.2020. The registry is directed to send a copy of this order to the ITAT.
5.1 Similarly, the Hon'ble Allahabad High Court in the case of Purnagiri Rice Mill vs. Union of India reported in 156 taxmann.com 435 has considered exactly identical issue and observed in para 4 to 9 as under:-
4. It is argued that although the appeal was dismissed for want of prosecution and the remedy for recalling of the said order was prescribed under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963, however, in view of the observations made by the ITAT, while dismissing 12 M.A No.149/CHNY/2023 the appeal for non-prosecution, an application was filed with the title "Application under section 254 of the Income Tax Act". The said application dated 25.02.2019, filed by the petitioner on 08.04.2019, was heard and the same was dismissed vide order dated 21.06.2023 mainly on the ground that the application has been filed beyond the limitation prescribed under section 254(2) of the Income Tax Act, referred to in Section 253(3) and 253(4) of the Act.
5. The contention of the counsel for the petitioner is that against the dismissal of appeal for want of prosecution, the remedy of recalling the order is clearly prescribed under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963. Rule 24 is quoted herein below :
"24. Hearing of appeal ex-parte for default by the appellant.- Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent:
Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex-parte order and restoring the appeal."
6. He argued that once a specific provision for recalling the order is provided in the Rules under which the Tribunal is supposed to work, the mention of Section 254 in the impugned order is wholly misplaced as the power under section 254 of the Income Tax Act is prescribed for rectification of errors which have been occurred in the order of the Appellate Tribunal and thus, the mention of provisions of Section 254 (2) and the limitation prescribed therein is wholly unwarranted as the application of the petitioner from the tenor was under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963. He argues that mention of Section 254 in the application filed by the petitioner was only in view of the observations made by the Appellate Tribunal in its order dated 26.06.2018.
7. The counsel for the respondent Sri Neerav Chitravanshi, based upon the instructions, argues that the application was dismissed in view of the bar of limitation prescribed under section 254 (2) of the Income Tax Act and no 13 M.A No.149/CHNY/2023 error has been committed by the Tribunal as the tile of the application filed by the petitioner itself disclosed the same to be an application under section 254 of the Act.
8. The counsel for the petitioner places reliance on a judgment in the case of Cement Corporation of India Limited vs. Assistant Commissioner, Income Tax Circle 5(2) New Delhi; WP (C) 1486 of 2013 decided on 06.02.2023 in which the Delhi High Court had the occasion to consider a similar order passed by the Tribunal invoking the limitation as prescribed under section 254 (2) while deciding the application for recall of an order. The Delhi High Court after considering the provisions of section 254(2) of the Income Tax (Appellate Tribunal) Rules discussed the provisions and decided that the application for recall is to be decided in terms of the provisions contained in Rule 24 of the Rules and reliance upon Section 254 was misplaced.
9. I do not see any reason to disagree with the said judgment as in the present case also, the application moved by the petitioner, in its tenor was traceable to the provisions of Rule 24 of the Income Tax (Appellate Tribunal) Rules and the petitioner never sought rectification of the said order. A mere wrong mention in the title of the application, that too on the basis of the observations made by the Tribunal itself cannot be construed against the petitioner and cannot wipe away the scope of application under Rule 24 of the Income Tax (Appellate Tribunal Rules). Thus, the order impugned dated 21.06.2023 is clearly unsustainable and is quashed. The matter is remanded to the Income Tax Appellate Tribunal to pass a fresh order in the light of the provisions contained under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 in accordance with law.
5.2 Moreover, Hon'ble Jurisdictional High Court in the case of Smt. Ritha Sabapathy vs. DCIT reported in 416 ITR 191 has considered an identical issue and considering Rule 24 of the Tribunal Rules and following the judgment of Hon'ble Supreme Court in the case of CIT vs. S. Chennaiappa Mudaliar reported in [1969] 74 ITR 1 has held as under:-
14 M.A No.149/CHNY/20235. The following observation of Special Bench of Madras High Court in S.Chenniappa Mudaliar v. CIT ((1964) 5 ITR 323) affirmed by Hon'ble Supreme Court in CIT v. S.Chenniappa Mudaliar ((1969) 1 SCC 591) = ((1969) 74 ITR 41) are also interesting and quoted below:-
"To sum up the position, the Appellate Tribunal is the appointed machinery under the Act for finally deciding questions of fact in relation to assessment of income-tax. Its composition, consisting as it does of qualified persons in law and accountancy, makes it peculiarly qualified to deal with all questions raised in a case, whether there be assistance from the party or his counsel or not. Section 33(4) obliges it to decide an appeal, after giving an opportunity to the parties to put forward their case. The giving of the opportunity only emphasises the character of the quasi-judicial function performed by the Appellate Tribunal. The fact that that opportunity is not availed of in a particular case, will not entitle the Tribunal not to decide the case. There can be no decision of the case on its merits if the matter is to be disposed of for default of appearance of the parties. Further, an adjudication on the merits of the case is essential to enable the High Court to perform its statutory duty and for the Supreme Court to hear an appeal filed under section 66-A. Section 33 (4) itself indicates by the use of the word 'thereon' that the decision should relate to the subject matter of the appeal. Rule 24, therefore, to be consistent with Section 33(4), could only empower the Tribunal to dispose of the appeal on its merits, whether there be an appearance of the party before it or not. This was indeed the rule when it was first promulgated in the year 1941. The rule in its present form, as amended in the year 1948, in so far as it enables the dismissal of an appeal before the Income tax Appellate Tribunal for default of appearance of the appellant, will, therefore, be ultra vires, as being in conflict with the provisions of Section 33(4) of the Act."
6. The aforesaid enunciation of law will govern even now under the new Income Tax Act, 1961 since the words in Section 254 of the Act continues to be the same viz., "the Tribunal may pass such orders 'thereon' as it thinks fit". Of course, Rule 24 has since been amended by the Income Tax (Appellate Tribunal) Rules, 1963, with effect from 1.8.1987 to fall in line with the aforesaid dicta of the Hon'ble Supreme Court in the case of CIT v. Chenniappa Mudaliar (supra) and now, the said Rule 24 does not permit the Tribunal to dismiss the case for default of appearance at all.
15 M.A No.149/CHNY/20237. We are rather little surprised that how, after so much of case laws on the issue and amendment of Rule 24 itself, the learned Members of the Tribunal, even now commit the said folly of dismissing the appeals for want of prosecution and for default of appearance on the part of the Appellants/Assessees. As far as the Department is concerned, they have their own Standing Counsels to appear in the Tribunal, but, the Assessees' Counsels may, some time, not put in appearance for a variety of reasons or for genuine overriding reasons for such non-appearance of the Counsels on their parts may be because of non-availability of the Counsels on particular day, costs involved in engaging counsels, etc. or any other such factors but, that does not entitle the Tribunal to dismiss the appeal without deciding the merits of the case.
8. On a conjoint reading of the relevant provisions of the Act, Rule 24 of the Income Tax (Appellate Tribunal) Rules and the aforesaid decisions of the Hon'ble Supreme Court, we are of the considered opinion that the Tribunal could not have dismissed the appeal for want of prosecution. Even if the assessee could not appear, the Tribunal could have decided the appeal only on merits, ex parte, after hearing the Revenue Side but, the dismissal of the appeal for want of prosecution is not only illegal but also entails further litigation and proceedings by compelling the Assessee to move for setting aside the ex parte order, which Tribunal is supposed to do but in the present case even that application too came to be dismissed by the learned Tribunal.
9. The Proviso to Rule 24 clearly mandates that the Tribunal shall set aside such ex parte order and restore the appeal for deciding the same on merits. However, the Tribunal seems to have been contended by dismissing the appeal for want of prosecution only and not touching the merits of the case at all and then further erred in dismissing the Miscellaneous Petition filed for recalling the ex parte order dismissing the appeal for want of prosecution.
10. We are not going into the merits of the case deliberately, though we are informed that the issue on hand was covered by the decision of the jurisdictional High Court which was binding on the Tribunal. We leave it free to the Tribunal to decide the appeal on merits and in accordance with law.
16 M.A No.149/CHNY/202311. We reiterate that the fact finding Tribunals should not shirk their responsibility to decide the cases on merits because the view and reasons given by such Tribunals are important for the Constitutional Higher Courts to look into while deciding the substantial questions of law under Section 260-A of the Act arising from Tribunal's orders. Obviously, such cryptic orders, not touching the merits of the case, would not give any rise to any substantial question of law for consideration by the High Courts under Section 260-A of the Act. The Assessee's valuable rights of getting the issues decided on merits by the final fact finding body viz., the Tribunal cannot be given a short shrift in the aforesaid manner. A legal and binding responsibility, therefore, lies upon the Tribunal to decide the appeal on merits irrespective of the appearance of the Assessee or his counsel before it or not.
12. Considering the enabling powers in the words 'as it thinks fit' employed in Section 254 of the Act read with Rule 24 and in view of the law laid down by the Hon'ble Supreme Court aforesaid, we set aside the impugned order of the learned Tribunal and direct the Tribunal to decide the appeal on merits afresh in accordance with law.
5.3 In view of the above position taken by Hon'ble Supreme Court and various High Courts including Hon'ble Madras High Court has considered and held that the Tribunal invoking the limitation as prescribed u/s.254(2) of the Act while deciding the application for recalling of an order held that application for recalling is to be decided in terms of provisions contained in Rule 24 of the Tribunal Rules and reliance placed upon section 254(2) of the Act on recalling of orders for dismissal of appeal for non-prosecution is misplaced.
Accordingly, in our view, the application moved by the assessee petitioner in its tenor is traceable to the provisions of Rule 24 of the Tribunal Rules and hence, we recall the Tribunal order dated 17 M.A No.149/CHNY/2023 31.02.2017 and direct the Registry to fix this appeal in regular course.
6. In the result, the miscellaneous application of the assessee is allowed.
Order pronounced in the open court on 10th July, 2024 at Chennai.
Sd/- Sd/-
(जगदीश) (महावीर सह )
(JAGADISH) (MAHAVIR SINGH)
लेखा सद य/ACCOUNTANT MEMBER उपा य /VICE PRESIDENT
चे ई/Chennai,
दनांक/Dated, the 10th July, 2024
RSR
आदेश क ितिलिप अ ेिषत/Copy to:
1. अपीलाथ /Applicant
2. यथ /Respondent
3. आयकर आयु /CIT, Chennai
4. िवभागीय ितिनिध/DR
5. गाड फाईल/GF.