ORISSA HIGH COURT, CUTTACK W.P.(C) No.2487 of 2019 In matter of application under Articles 226 and 227 of Constitution of India. Rabindra Kumar Mohanty Petitioner Versus Registrar, Income Tax Appellate Tribunal, Cuttack Bench, Cuttack Opp. party For Petitioner : M/s. Rudra Prasad Kar, A.N.Ray & N.Panda For Opp. party : M/s. T.K.Satapathy Date of hearing: 13.02.2020 Date of Judgment: 18.03.2020 PRESENT: HONOURABLE MR. JUSTICE C.R.DASH AND HONOURABLE MR. JUSTICE S.K.PANIGRAHI S.K.Panigrahi, J. petitioner is Individual engaged in business of arrangement of trucks for transportation of materials of different parties. Assessing Officer, vide assessment order dated 30.06.2014, added Rs. 72,23,004/- towards undisclosed transportation receipt and Rs. 2,23,885/- in shape of TDS towards excess of assets over liabilities to total income of petitioner for Assessment Year 2009-10. Being aggrieved, petitioner approached Commissioner of Income Tax (Appeals) 2, Bhubaneswar, which vide its order dated 22.2.2016 in I.T. Appeal //2// No.0288/2015-16, partly allowed appeal of petitioner herein i.e. it conformed addition of undisclosed transportation receipt of Rs. 72,23,004/- to income while waived of addition of Rs.2,23,885 in shape of TDS towards excess of assets over liabilities. Being aggrieved by order dated 22.02.2016 of CIT (A) 2, Bhubaneswar, petitioner approached Income Tax Appellate Tribunal (hereinafter called Tribunal ), Cuttack Bench, Cuttack vide ITA No. 300/CTK/2016 for assessment year 2009- 10. Ld. Tribunal issued notice for hearing on 06.07.2017 and on said date, authorised representative of petitioner filed adjournment application and case was placed for hearing on 30.08.2017 accordingly. However, on 30.08.2017 neither petitioner nor his authorised representative or his counsel were present. Tribunal, therefore, dismissed appeal for want of prosecution. petitioner preferred appeal by way of filing W.P.(C) No.2487 of 2019 before this Court even though no restoration application was filed before Ld. Tribunal. 2. principal question of law which arises for consideration in present appeal, as to whether Income Tax Appellate Tribunal has power to dismiss appeal for want of prosecution or not. 3. Heard Mr. R.P. Kar, learned counsel for petitioner and Mr. T.K. Satapathy, learned counsel for opposite party. //3// 4. Learned counsel for petitioner submitted that even if petitioner was not present before Tribunal when appeal was taken up for hearing, it could not have been dismissed for want of prosecution as Section 254 (1) of Income Tax Act, 1961 (for short, Act ) enjoins upon Tribunal to pass such orders thereon as it thinks fit after giving opportunity of being heard to both parties. Thus, there is no power vested in Tribunal to dismiss appeal for want of prosecution even if appellant therein has not appeared when appeal was taken up for hearing. Section 254(1) of Income Tax Act, 1961 Provides that Appellate Tribunal may, after giving both parties to appeal opportunity of being heard, pass such orders thereon as it thinks fit. 5. Learned counsel for petitioner further submitted that Rule 24 of 1963 Rules does not give power to Ld. Tribunal to dismiss appeal for want of prosecution. said Rule articulates that, where, on day fixed for hearing or on any other date to which hearing may be adjourned, appellant does not appear in person or through authorised representative when appeal is called on for hearing, Tribunal may dispose of appeal on merits after hearing respondent. Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963 Provides that where, on day fixed for hearing or on any other date to which hearing may be adjourned, appellant does not appear in person or through authorised representative when appeal is called on for hearing, Tribunal may dispose of appeal on merits after hearing respondent: //4// Provided that where appeal has been disposed of as provided above and appellant appears afterwards and satisfies Tribunal that there was sufficient cause for his non-appearance, when appeal was called on for hearing, Tribunal shall make order setting aside ex-parte order and restoring appeal. 6. On conjoint reading of aforesaid provisions, we find that Act enjoins upon Tribunal to pass order on appeal as it thinks fit after giving both parties opportunity of being heard. It does not give any power to Tribunal to dismiss appeal for default or for want of prosecution in case Petitioner is not present when appeal is taken up for hearing. 7. Supreme Court of India had confronted with such question in Commissioner of Income-Tax, Madras vs. S. Chenniappa Mudaliar, Madurai 1969 (1) SCC 591, wherein it considered provisions of Section 33 of erstwhile Income-tax Act, 1922 and Rule 24 of Appellate Tribunal Rules, 1946 which gave power to Tribunal to dismiss appeal for want of prosecution. For ready reference, Section 33(4) of Income Tax Act, 1922 and Rule 24 of Appellate Tribunal Rules, 1946 are reproduced below:- Section 33 (4) of Income Tax Act, 1922 "33(4). Appellate Tribunal may, after giving both parties to appeal opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to assessee and to Commissioner." Rule 24 of Appellate Tribunal Rules, 1946 - " Where on day fixed for hearing or any other day to which hearing may be adjourned, appellant does not appear when appeal is called on for hearing, Tribunal may dismiss appeal for default or may hear it ex-parte." //5// In said case High Court of Madras held that under Section 33 (4), Tribunal was bound to dispose of appeal on merits, whether Petitioner was present or not. language of Section 33(4) and in particular use of word thereon signifies that Tribunal has to go into correctness or otherwise of points decided by departmental authorities in light of submissions made by appellant. This can only be done by giving decision on merits on questions of fact and law and not by merely disposing of appeal on ground that party concerned had failed to appear. position becomes quite simple when it is pointed that assessee or CIT, if aggrieved by orders of Appellate Tribunal, can have resort only to provisions of Section 66. So far as questions of fact are concerned decision of Tribunal is final and reference can be sought to High Court only on questions of law. High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. advisory jurisdiction can be exercised on proper reference being made and that cannot be done unless Tribunal itself has passed proper order under Section 33(4). It follows from all this that Appellate Tribunal is bound to give proper decision on questions of fact as well as law which can only be done if appeal //6// is disposed of on merits and not dismissed owing to absence of appellant. This position of law was affirmed by Apex Court. 8. said principle was also affirmed by Supreme Court in Balaji Steels Re-rolling Mills v. CCE [2014 (16) SCC 360] and similar line of judgments rendered by different High Courts, like - Bharat Petroleum Corporation Limited Vs ITAT, Mumbai [2013 SCC online BOM 1385: (2013) 359 ITR 271); CIT v. H S Akodia [(1966) 61 ITR 50 (MP)]; M X De Nornha & Sons v. CIT [(1950) 18 ITR 928 (All)]; Mangat Ram Kuthalia v. CIT [(1960) 38 ITR 1 (Pun)]; Ganesh Vs. CCE, Salem-I, Madras High Court [2019 (365) ELT 301 (Mad.)]; N.S. Mohan v. ITAT & Anr in W.P. No. 8126 of 2018. 9. In yet another land mark judgment rendered by Full Bench of Madras High Court in State of Tamil Nadu v. Arulmurugan & Co., [(1982) 51 STC 381] wherein it was held that appellate authorities perform precisely same functions as assessing authority. said Bench expressed view that tax appeal is rehearing of entire assessment and it cannot be equated to adversary proceedings in appeal in civil cases. In fact, assessing authority is not taxpayer s opponent . Procedurally speaking, in tax appeal, appellate authority is very much committed to assessment process. Similar views have been taken by Supreme Court in line of cases like State of Orissa v. Babu Lal Chappolia //7// [(1966) 18 STC 17 (SC)], CAGIT v. V N Narayan [(1972) 83 ITR 453 (SC)], S N Swarnnamal v. CED [(1973) 88 ITR 366 (Mad.)]. 10. Article 265 of Constitution mandates that no tax can be collected except by authority of law. Appellate proceedings are also laws in strict sense of term, which are required to be followed before tax can legally be collected. Similarly, provisions of law are required to be followed even if tax payer does not participate in proceedings. No assessing authority can refuse to assess tax fairly and legally, merely because tax payer is not participating in proceeding. Hence, dismissal of appeals by ITAT for non- persecution is wholly illegal and unjustified. 11. If we see this issue through prism of Principles of natural justice, appellate authority is required to afford opportunity to be heard to appellant. It has been held in plethora of cases that right to natural justice is personal right, either person can waive it or person may not avail it. Merely because person is not availing his right of natural justice, it cannot be ground of refusal to perform statutory duty of deciding appeal by Tribunal. 12. Applying principles laid down in aforesaid cases to facts of present case, we are of considered opinion that Tribunal could not have dismissed appeal filed by appellant for want of prosecution and it ought to have decided appeal on //8// merits even if appellant or its counsel was not present when appeal was taken up for hearing. 13. In view of above analysis, Rules and provisions of Act would pave way for Tribunal to reconsider its decision. writ petition is allowed and we direct Tribunal to restore appeal and decide appeal on merit after giving both parties opportunity of being heard. writ petition is accordingly disposed of. No order as to cost. .. . S.K. Panigrahi, J. C.R. Dash, J. I agree. .. . C.R. Dash, J. High Court of Orissa, Cuttack Dated 18th March, 2020/bns Rabindra Kumar Mohanty v. Registrar, Income-tax Appellate Tribunal, Cuttack Bench, Cuttack