IN HIGH COURT OF JUDICATURE AT MADRAS DATED : 17-03-2015 Coram : HONOURABLE MR. JUSTICE S. VAIDYANATHAN W.P. No. 5637 of 2015 I. Jaheer Ali Proprietor M/s. J.A. Electrical Engineering Works No.59/0, Meenakshi Nagar Near Central Jail Salem - 636 007 Petitioner Versus 1. Commissioner of Income Tax (Appeals) O/o. Commissioner of Income Tax (Appeals) No.3, Gandhi Road Salem - 636 007 2. Assistant Commissioner of Income Tax Circle 1, Salem - 636 007 .. Respondents Petition filed under Article 226 of Constitution of India praying for Writ of Certiorarified Mandamus calling for records of first respondent dated 30.12.2014 bearing Order in I.T.A. No. 284/2010-11 and to quash same with consequential direction to first respondent to provide opportunity of hearing for disposal of appeal on merits in accordance with law. For Petitioner : Mr. H. Nazirudeen For Respondents : Mr. Pramod Kumar Chopda ORDER petitioner seeks to quash order dated 30.12.2014 of first respondent, in and by which, first respondent dismissed appeal preferred by petitioner, exparte. 2. Admittedly, appeal filed by petitioner was taken up for hearing by first respondent on 06.09.2012, 24.09.2012, 22.01.2013 and 20.08.2014. In all those hearings, there was no representation for petitioner. Therefore, 2 first respondent came to conclusion that petitioner is not interested in prosecuting appeal and consequently dismissed appeal on 30.12.2014 for non-prosecution. 3. learned counsel appearing for petitioner would contend that as against order dated 24.12.2010 of second respondent, petitioner has preferred appeal under Section 143 (3) of Income Tax Act before first respondent. According to learned counsel for petitioner, first respondent, in exercise of powers conferred under Section 251 of Income Tax Act may confirm, vary, reduce or enhance order of assessment as contemplated under Section 251 (2) of Act. However, first respondent has no power to dismiss appeal for non-prosecution. However, it is submitted by learned counsel for petitioner that non-appearance of petitioner or their representative on hearing dates is neither wilful nor wanton. Therefore, in interest of justice, one more opportunity shall be given to petitioner to adjudicate appeal on merits before first respondent. 4. On above contention, this Court heard learned standing counsel for respondents, who supported order dated 30.12.2014 of first respondent and prayed for dismissal of writ petition. 5. I heard learned counsel for both sides and perused materials placed on record. Even though Section 251 of Income Tax Act imposes obligation on appellate authority/the first respondent to dispose of appeal filed before it on merits, in given facts and circumstances of case, it cannot be said that order dated 30.12.2014 passed by first respondent is in 3 violation to said provisions of Income Tax Act. It is not as though first respondent passed order dated 30.12.2014 without affording sufficient opportunity to petitioner. appeal was posted for hearing on 06.09.2012, 24.09.2012, 22.01.2013 and 20.08.2014 and in all those hearings, there was no representation for petitioner. Therefore, first respondent has rightly passed order dated 30.12.2014 dismissing appeal preferred by petitioner for non-prosecution. When appellant did not turn up to agitate appeal on merits, first respondent can only conclude that assessee is not interested to prosecute appeal. Therefore, this Court is not inclined to interfere with order passed by first respondent. However, taking note of fact that petitioner has no occasion to challenge validity of order passed by second respondent on 24.12.2010 and as appeal was dismissed by first respondent for non-prosecution, I feel that in interest of justice, one more opportunity shall be given to petitioner. 6. In light of above, writ petition is disposed of by setting aside order dated 30.12.2014 of appellate authority/first respondent. No costs. first respondent is directed to take up appeal preferred by petitioner for hearing on 24.04.2015 on which date, petitioner shall appear before first respondent without fail. first respondent shall thereafter hear petitioner and pass orders on merits and in accordance with law, as expeditiously as possible. It is made clear that if petitioner did not appear before first respondent on 24.04.2015, this order shall stand revoked automatically without reference to this Court and consequently order dated 30.12.2014 passed by first respondent shall stand restored . 4 17-03-2015 rsh Index : Yes / No Internet : Yes / No To 1. Commissioner of Income Tax (Appeals) O/o. Commissioner of Income Tax (Appeals) No.3, Gandhi Road Salem - 636 007 2. Assistant Commissioner of Income Tax Circle 1, Salem - 636 007 5 S. VAIDYANATHAN, J rsh WP No. 5637 of 2015 17-03-2015 I. Jaheer Ali v. Commissioner of Income-tax (Appeals), Salem / Assistant Commissioner of Income-tax, Circle-1, Salem