- (1.) We have heard Shri Vinod Kumar Rastogi for the appellant -company. Shri Ashok Kumar appears for the department. In these Income Tax Appeals under Section 260 -A of Income Tax Act, 1961 arising out of an order dated 30.8.2012 passed by Income Tax Appellate Tribunal, Agra dismissing ITA Nos. 92 & 93/Agra/2012 for assessment years 2007 -08 and 2008 -09 in limine on the ground that the appellant did not appear, the question raised is, 'whether the Income Tax Appellate Tribunal, exercising powers of second appeal under Section 254 of the Act, can dismiss the appeal in limine without going into the merits of the case.
(2.) Both the appeals were preferred and were admitted on following two substantial questions of law: - - WHETHER under the facts and circumstances of the case the Hon'ble Income Tax Appellate Tribunal was justified in dismissing the appeal in limine, without going into the merits of the case? Whether the Income Tax Appellate Tribunal was justified in exercising the power given under Section 254 of the I.T. Act, 1961, in dismissing the appeal in limine, without appreciating the scope of the aforesaid provisions that the same should be disposed off on merits. SECTION 254 of the Income Tax Act provides: Orders of Appellate Tribunal 254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub -section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the (Assessing) Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub - section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard:
(3.) Provided further that any application filed by the assessee in this sub -section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.;