Tribunals are not empowered to dismiss appeals for default in absence of the appellant and are required to dispose of appeals on merit.

Amitava Roy, J.

1. This petition under Article 226 of the Constitution of India registers a challenge to the order dated 23.8.2007 passed by the learned Income Tax Appellate Tribunal, Guwahati Bench, Guwahati (hereinafter referred to as the 'Tribunal') dismissing four appeals being ITA Nos. 29/Gau/2006, 30/Gau/2006, 35/Gau/2006 & 36/Gau/2006 filed by the petitioner assessee before it against the assessment orders dated 21.12.2005, 21.12.2005, 20.12.2005 & 20.12.2005 for the assessment year 1990-91, 1991-92, 1988-89 & 1989-90 respectively.

2. I have heard Mr. A.K. Roy Choudhury, Senior Advocate assisted by Ms. S. Roy Choudhury and Mr. Manash Haloi, Advocates for the petitioner and Mr. U. Bhuyan, learned Standing counsel, Revenue assisted by Mr. B. Chakraborty and Ms. K. Medhi, Advocates.

3. The un-rebutted pleaded facts in short as would be necessary for disposing of the represent petition are that, the petitioner assessee being aggrieved by the aforementioned orders of the Assistant Commissioner of Income Tax, Circle II, Guwahati preferred the above appeals before the Tribunal under Section 250 of the Income Tax Act, 1961 (hereinafter referred to as the 'Act'). The learned Tribunal by the impugned order dismissed the appeals solely on the ground that the appellant assessee had failed to appear before it on the date fixed for hearing. This course of action of the learned Tribunal, as the impugned order reveals, was purportedly by invoking Rule 19 (2) of the Appellate Tribunal Rules, 1963 (hereinafter referred to as the 'Rules'). The learned Tribunal also sought to draw sustenance for its decision from the verdict rendered by the Income Tax Tribunal, Delhi Bench, Delhi in Commissioner of Income Tax v. Multiplan India (P) Ltd. 38. ITD 320 (Delhi).

4. Mr. Roy Choudhury has argued that having regard to the prescription of Section 254 of the Act and the state of law as contained in Rule 24 of the Rules, the impugned decision suffers from patent error of law and is liable to be adjudged non est, ineffectual, null and void. According to the learned Senior counsel, even if the appellant assessee was absent before the Tribunal, the only course open to it was to dispose of the appeal on merits. In any view of the matter, therefore, Mr. Roy Choudhury urged that the impugned order on the face of the record is illegal and liable to be interfered with in the interest of justice. In support of his contention, the/learned Senior counsel has placed reliance on the decision of the Apex Court in Commissioner of Income Tax, Madras v. S. Chenniappas Mudliar [1969] 74 ITR 41 (SC) as well as of this Court in the Assam Tribune v. Commissioner of Income Tax and Anr. Mr. Bhuyan, learned Standing counsel, Revenue, does not dispute the proposition of law as projected by the learned Senior counsel for the petitioner and contends that in the facts and circumstances of the case, the appeals may be ordered to be disposed of on merits by the learned Tribunal.

5. After hearing the learned Counsel for the parties and on a perusal of the provisions of law referred to hereinabove, it is more than apparent that the course adopted by the learned Tribunal in disposing of the assessee's appeals in the manner as delineated in the impugned order, cannot be sustained. Apart from the fact that, Section 254 (earlier Section 33) of the Act makes it incumbent on the learned Tribunal to dispose of the appeals on merit as has been enunciated by the Apex Court in Commissioner of Income Tax v. S. Chenniappas Mudliar (supra), Rule 24 as it stands, per se does not empower the learned Tribunal to dismiss an appeal for default in absence of the appellant. The learned Tribunal's reliance on the decision of the Income Tax Appellate Tribunal, Delhi rendered in Commissioner of Income Tax v. Multiplan India (P) Ltd. (supra) is apparently misplaced in the teeth of the decision of the Apex Court in Commissioner of Income Tax, Madras v. S. Chenniappas Mudliar (supra).

6. In the above view