The appellate authority must discuss merits even if the appellant is absent; mere absence does not justify dismissal without consideration.

JUDGMENT

The petitioner is a partnership firm and an assessee under the provisions of the Income Tax Act 1961. The challenge raised in this writ petition is against Ext.P4 order passed by the first appellate authority under Section 250 of the Income Tax Act, 1961 . Initially pertaining to the assessment year 2014- 2015, Ext.P1 order of assessment was passed and being aggrieved by the same, an appeal was submitted before the 2^nd respondent. However, the appeal was rejected by the appellate authority as per Ext.P4 order.

2. According to the petitioner Ext.P4 order was passed rejecting the appeal solely in view of the fact that the petitioner failed to appear when the appeal was taken up for hearing. The specific contention raised by the learned senior counsel for the petitioner is that, such a course is not open to the appellate authority in the light of the statutory stipulations contained in Section 250 of the Act. It is pointed out that as per the said provision, the appellate authority is under an obligation to decide the matter on merits. Reliance was also placed on Ext.P5, a judgment rendered by this Court, wherein the above legal proposition was upheld.

3. After hearing the learned Senior Counsel for the petitioner and the learned Standing Counsel for the respondents, I find that there are certain factors that distinguish this case from the judgment rendered by this Court as per Ext.P5. On going through Ext.P4 order, it can be seen that, the appellate authority, even though referred to the absence of the petitioner and also its noncooperation in the process of adjudicating the appeal, a discussion was also made on merits after extracting the findings of the Assessing Officer. In the concluding part of the appellate order it was observed that, the appellate authority is in agreement with the findings of the Assessing Officer and he held that the appellant is unable to substantiate their claim and is not able to controvert the assessment order. Therefore, it is not a case in which the appeal was dismissed merely for non appearance of the appellant. The merits was also discussed and the view of the appellate authority was also expressed.

4. Of course it is true that, the findings on merits are not discussed in detail. However, it is a fact that the appellant was not present when the appeal was taken up for hearing. In such an event, the appellate authority is not expected to pass a detailed order touching upon the merits of the matter and it would be sufficient, if the order reflects the application of the mind of the appellate authority to the merits of the case.

In such circumstances, I do not find any justifiable reason to interfere with Ext.P4 order and the same is appealable before the Appellate Tribunal. Accordingly, this writ petition is dismissed without prejudice to the right of the petitioner to invoke the appellate remedies.

Sd/-