UDESHI K T Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN this reference the question referred to us to be found in the statement of case is as follows :

(2.) THE assessee before us had filed an appeal to the Tribunal from the order of the AAC objecting to the addition of Rs. 2,000 in his total income as income from undisclosed sources. A certain address had been given in the memo of appeal before the Tribunal to which notice of hearing may be sent. THE date of hearing of the appeal was fixed by the Tribunal on October 30, 1967, and the notice of hearing was sent to the assessee by registered post A.D. to the address given by him in the memo of appeal. THE said notice seems to have been served on one Ajit Udeshi, who is the son of the assessee. However, at the hearing of the appeal no one was present on behalf of the assessee and the same was accordingly dismissed by the Tribunal for default of appearance of the appellant. That was on October 30, 1967.

(3.) THIS has been so `held' in CIT vs. S. Chenniappa Mudaliar (1969) 74 ITR 41 (SC), in which it has been observed that the Tribunal is required to give a decision on merits on questions of fact and law and cannot dispose of the appeal by a simple dismissal for default on the ground that the party concerned has failed to appear. Rule 24 of the Tribunal Rules (as amended) permitting such dismissal has been clearly held as ultra vires as coming into conflict with s. 33(4). Mr. Joshi, therefore, has pointed out that in view of this authoritative pronouncement of the Supreme Court, the original order passed on October 30, 1967, cannot be sustained and the Tribunal was required and would be required to dispose of the assessee's appeal on merits. THIS is the obvious position and since the assessee's appeal would be required to be disposed of by the Tribunal on merits we will not go into and answer the question referred to us.