Can an appellate authority under the Income-tax Act throw out an appeal because the appellant did not turn up?
The Supreme Court struck down the rule that allowed the Appellate Tribunal to dismiss an appeal for default of appearance, holding it ultra vires the statutory obligation to dispose of an appeal on the merits. The reasoning - that the statute commands a decision, not a disposal - is the source of the settled position that the CIT(A) too must decide, not dismiss for non-prosecution.
Decided by the Supreme Court on 1969-02-24, reported as (1969) 74 ITR 41 (SC); (1969) 1 SCC 591; AIR 1969 SC 1068. It bears on section 250, section 251 of the Income Tax Act 1961, in Appeals matters.
Binding on every court and authority in India.
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Rule 24 of the Appellate Tribunal Rules as it then stood permitted the Tribunal to dismiss an appeal for default if the appellant did not appear on the date of hearing. An appeal was so dismissed. The validity of the rule was challenged as being beyond section 33(4) of the Indian Income-tax Act, 1922, which required the Tribunal to pass such orders on the appeal as it thinks fit after giving both parties an opportunity of being heard. The High Court held the rule invalid and the Revenue appealed.
The rule permitting dismissal for default was ultra vires section 33(4). The appellate authority is bound to dispose of the appeal on the merits, on questions of fact and of law; giving the parties an opportunity of hearing emphasises the quasi-judicial character of the function but does not convert non-appearance into a ground of disposal.
The statutory scheme makes the appellate authority the machinery for finally deciding questions of fact in relation to assessment. A provision that lets the authority dispose of an appeal without adjudicating it defeats that scheme and leaves the assessment standing on reasoning that was never tested. The obligation to give an opportunity of hearing exists for the parties' benefit; it cannot be turned into a penalty on the party who fails to use it. A rule framed under the Act cannot cut down the substantive obligation the section imposes.
This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear.
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Handle my notice → Ask a CA on WhatsAppThe Supreme Court struck down the rule that allowed the Appellate Tribunal to dismiss an appeal for default of appearance, holding it ultra vires the statutory obligation to dispose of an appeal on the merits. The reasoning - that the statute commands a decision, not a disposal - is the source of the settled position that the CIT(A) too must decide, not dismiss for non-prosecution. This was decided by the Supreme Court and bears on section 250, section 251 of the Income Tax Act 1961. It is reported as (1969) 74 ITR 41 (SC); (1969) 1 SCC 591; AIR 1969 SC 1068. If it applies to you, the first step is this: If the CIT(A) has dismissed your appeal in limine for non-prosecution, do not fight only about why you did not appear - attack the order as one that never decided anything.
Rule 24 of the Appellate Tribunal Rules as it then stood permitted the Tribunal to dismiss an appeal for default if the appellant did not appear on the date of hearing. An appeal was so dismissed. The validity of the rule was challenged as being beyond section 33(4) of the Indian Income-tax Act, 1922, which required the Tribunal to pass such orders on the appeal as it thinks fit after giving both parties an opportunity of being heard. The High Court held the rule invalid and the Revenue appealed. The matter was decided on 1969-02-24 by the Supreme Court. On those facts the Supreme Court held as follows. The rule permitting dismissal for default was ultra vires section 33(4). The appellate authority is bound to dispose of the appeal on the merits, on questions of fact and of law; giving the parties an opportunity of hearing emphasises the quasi-judicial character of the function but does not convert non-appearance into a ground of disposal.
The statutory scheme makes the appellate authority the machinery for finally deciding questions of fact in relation to assessment. A provision that lets the authority dispose of an appeal without adjudicating it defeats that scheme and leaves the assessment standing on reasoning that was never tested. The obligation to give an opportunity of hearing exists for the parties' benefit; it cannot be turned into a penalty on the party who fails to use it. A rule framed under the Act cannot cut down the substantive obligation the section imposes. In the words reproduced by the source cited on this page: "This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear."
It was decided by the Supreme Court on 1969-02-24 and is reported as (1969) 74 ITR 41 (SC); (1969) 1 SCC 591; AIR 1969 SC 1068. Binding on every court and authority in India. A Supreme Court decision binds every assessing officer, every Commissioner (Appeals), every bench of the Income Tax Appellate Tribunal and every High Court in India. An officer who declines to follow it is acting contrary to law, and that refusal is itself a ground of appeal. On section 250, section 251, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It cuts both ways and is cited by both sides. The rule permitting dismissal for default was ultra vires section 33(4). The appellate authority is bound to dispose of the appeal on the merits, on questions of fact and of law; giving the parties an opportunity of hearing emphasises the quasi-judicial character of the function but does not convert non-appearance into a ground of disposal. It arises in Appeals matters, on section 250, section 251 of the Income Tax Act 1961. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Frame a specific ground before the ITAT that the order violates s.250(6) and s.251(1)(a) read with Chenniappa Mudaliar, and ask for restoration with a direction to decide on merits. Where an ex parte order does exist, check whether it states the points for determination and gives reasons; a bare recital of non-appearance is not an order on merits. Keep proof of every adjournment request and portal upload, so the record shows the appeal was live even if a hearing was missed. Do not assume dismissal is void and ignorable - it binds until set aside, so file the further appeal within time.
Still good law. A separate check for later treatment found the Bombay High Court following it in Bharat Petroleum Corporation Ltd v ITAT (25 October 2013), holding that under Rule 24 the Tribunal has no power to dismiss an appeal for non-appearance and must decide on merits. No contrary Supreme Court authority or superseding amendment was found. That finding was checked against a published source, which is linked on this page, on 2026-08-19. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The rule permitting dismissal for default was ultra vires section 33(4). The appellate authority is bound to dispose of the appeal on the merits, on questions of fact and of law; giving the parties an opportunity of hearing emphasises the quasi-judicial character of the function but does not convert non-appearance into a ground of disposal.
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