JUDGEMENT
Egbert Singh, Accountant Member -
(1.)THE appeals are by the assessee arising identical grounds of appeal, against the different orders of the Commissioner of Income-tax (Appeals). THE contention of the assessee is that the CIT (Appeals) erred in dismissing the appeals only on the ground that none appeared at the time of hearing. Against the penalty orders the assessee took up different appeals before the CIT (Appeals) who noted that the appeals were fixed on three occasions but the assessee did not attend on any date. THE CIT (Appeals) observed that the assessee was not serious in pursuing the appeals. He, therefore, dismissed the appeals for the assessment years 1977-78 and 1980-81 vide order dated 26-3-1987 in appeal Nos. Dita-6/85-86 and Dib-13/85-86. Similar orders were passed by the CIT (Appeals) in respect of other years under different sections. Hence these appeals by the assessee.
(2.)None appeared at the time when the case is called for hearing. It is seen that subsequently a telegram has been received from the assessee seeking adjournment due to unavoidable circumstances. The Bench considered the message and noted that adjournment cannot be accepted. The Tribunal, therefore, looked into the grounds of appeal by the assessee for disposal on merits.
We have heard the learned Departmental Representative and have gone through the orders of the CIT (Appeals) impugned before us. We are of the opinion that there is substantial force in the submissions of the assessee. At the outset, it may be mentioned that there is a difference between tax appeal and civil appeal as observed by the Hon'ble Madras High Court (Full Bench) in the case of State of Tamil Nadu v. Arulmurugan & Co. [1982] 51 STC 381. It was observed at page 392 that an appeal in tax matter is a continuation process of assessment for adjustment of tax liability of the taxpayer and there can be no analogy between a tax appeal and a civil appeal. A civil appeal, like a law suit in the Court of first instance is really an adversely proceeding that is a controversy over mutual rights and obligations between the litigants. It was observed that in a tax appeal the appellate authority is very much committed to the assessment process and that the first appellate authority can itself enter the arena of assessment, either by pursuing further investigation or causing further investigation may be made and that the tax appellate authority can enhance the assessment even though the appeal itself has been mooted only with a view to a reduction in the assessment.
(3.)IN the present case according to the CIT (Appeals) the assesses did not turn up on three occasions when the cases were fixed for hearing. But he has not given any indication that notices were served on the assessee on all those occasions that the assessee declined to appear. Even otherwise, assuming that notice was served on the assessee but the assessee decline to appear, the tax appellate authority has to dispose of the matter on merits. Even the Tribunal unlike the High Court has to dispose of the matter before it on merits even though the appellant or the respondent might not appear before it. IN fact, once an assessee has filed an appeal against the assessment order, the assessee set the judicial machinery in motion and cannot be allowed to withdraw the appeal and the appellate authority has to dispose of the matter on merits without allowing such appeal to be withdrawn. For this proposition, we may refer to the decision of the Hon'ble Calcutta High Court in the case of Bhartia Steel & Engg. Co, (P.) Ltd. v. ITO [1974] 97 ITR 154 in which the decision of the Hon'ble Supreme Court in the case of CIT v. Rai Bahadur Hardutroy Motilal Chamaria [1967] 66 ITR 443 was taken into account. IN that decided case the Hon'ble Supreme Court has, amongst other things and on the facts of the case, observed at page 450 that it is well established that an assessee having once filed an appeal cannot withdraw it and cannot prevent the Appellate Assistant Commissioner from ascertaining and settling the real sum to be assessed. It was observed also that even if the assessee refuses to appear at the hearing, the Appellate Assistant Commissioner can proceed with the enquiry and if he finds that there has been an under-assessment, he can enhance the assessment.
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