K. Vinod Chandran, CJ. – The petitioner, an assessee, under the Bihar Goods and Services Tax Act, 2017, challenged the appellate order dated 15.02.2023 passed by the 3rd Respondent under Section 74 of the Act. The short ground, on which the challenge is raised, is that the Appellate Authority has dismissed the appeal for reason of non-prosecution of the same when even in the context of non-appearance of the appellant, the Appellate Authority was statutorily obliged to dispose of the appeal on merits. Learned counsel appearing for the petitioner also relies on the decision of the Hon’ble Supreme Court in Commissioner of Income Tax, Madras vs. S.Chenniappa Mudaliar, Madurai; (1969)1 SCC 591.

2. The learned Government Pleader, in support of the order, points out the grounds raised by the appellant having been dealt with by the Assessing Officer and reiterated by the Appellate Authority, in its order produced as Annexure-9. It is also pointed out that the appellant had consistently not appeared before the Appellate Authority in which circumstance, the said fact was also noticed by the Appellate Authority, which was an additional reason cited by the Appellate Authority to reject the appeal. It is pointed out that there is provided an appeal before the GST Tribunal and since the Tribunal has not yet been constituted, this Court in similar matters grants liberty to the assessee to approach the Tribunal as and when it is constituted and keeps in abeyance the recovery proceedings on deposit of 20% of the tax amount disputed. There is no cause for invocation of the extraordinary remedy under Article 226 of the Constitution of India, is the compelling submission; but for the above limited relief.

3. The appellate order dated 15.02.2023 is in an appeal filed against the order dated 01.11.2021, produced by the petitioner which is at Annexure-9, the operative portion of which, in the vernacular, was translated to English and produced before us across the bar, with copy served on the learned State Counsel.

4. Before we look at the order, we have carefully read the decision of the Hon’ble Supreme Court cited before us, which dealt with Sections 33 (4) and 66 of the Income Tax Act 1922 and Rule 24 of the Appellate Tribunal Rules, 1946. Rule 24 empowered the Appellate Tribunal, subject to the provisions of the Act, to regulate its own procedure and the procedure of Benches of the Tribunal in all matters arising out of the discharge of its functions, including the places at which the Benches shall hold their sittings. The Appellate Tribunal first had a set of rules which provided that the Tribunal shall determine the appeal on merits, notwithstanding the absence of the appellant and it was also empowered to restore an appeal which was disposed of without hearing the appellant. The substituted rules contained Rule 24A, which empowered the Tribunal to dismiss the appeal for default if the appellant does not appear on the day fixed for hearing and on any day to which the appeal is adjourned; without any provision for restoration of the appeal dismissed for default.

5. The Hon’ble Supreme Court found that the scheme of the Act, especially Section 33 (4) was to dispose of an appeal by making such orders as the Tribunal thinks fit, on the merits. The Hon’ble Supreme Court specifically emphasized the word ‘thereon’ in sub-section (4) of Section 33, which required the Tribunal to afford an opportunity of hearing to both parties and make such orders ‘thereon’ as it thinks fit. The word ‘thereon’, according to the Hon’ble Supreme Court, clearly indicated that the Tribunal ought to go into the correctness or otherwise or the points decided by the departmental authorities in the light of the submissions made by the appellant. ‘This exercise can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear’ (sic). The decisions in Hukumchand Mills