PRASADA RAO GANIPINENI,NELLORE vs. ACIT., CIRCLE - 1, NELLORE
Income Tax Appellate Tribunal, Hyderabad ‘B’ Bench, Hyderabad
Before: SHRI VIJAY PAL RAO & SHRI MANJUNATHA G
Leave granted,
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ITA.No.640/Hyd./2025
The appellants herein are the plaintiffs who were the appellant in RSA No.156/2022. The only grievance of the appellants herein is with regard to the dismissal of the said appeal vide order dated 26.09.2023 on merits although the appellants were not represented inasmuch as there was no counsel who appeared for the appellants and the junior counsel for the appellants submitted that the senior counsel engaged in the matter, was not available cousin had passed away. Therefore, on account of a bereavement in the family of the arguing counsel there was no representation behalf of the appellants before the High Court.
Learned senior counsel appearing for the appellants submitted that the High Court could have dismissed the appeal for non-prosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of disnissing the appeal on merits stating that no substantial question of law was made out. Therefore, the learned senior counsel submitted that the impugned judgment may be set aside and the matter may be remanded to the High Court for consideration on the merits of the appeal.
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ITA.No.640/Hyd./2025
Per contra, learned counsel appearing for the respondent supported the impugned judgment and contended that the appellants consistently failed to appear before the High Court and therefore, the High Court had no option but to pass the impugned judgment and that there is no merit in the appeal.
Having heard learned senior counsel for the appellants and learned counsel for the respondents, at the outset, we extract
Order XLI Rule 17 of CPC which reads as under :
“17. Dismissal of appeal for appellant's default :-
(1) Where on the day fixed, of on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
Explanation – Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.”
The Explanation categorically states that if the appellant does not does not appear whenthe appeal is called for hearing it can only be dismissed for non-prosecution and not on merits.
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ITA.No.640/Hyd./2025
However, the impugned judgment isa dismissal of the appeal on merits which is contrary to the aforesaid provisions and particularly the Explanation thereto. On that short ground alone the appeal is allowed the impugned order is set aside.
The RSA No.196/2022 is restored on the file of the High
Court.
The parties are at liberty to advance arguments on the merits of the case.
All contentions are left open.
The appeal is allowed and disposed of in the aforesaid terms.
No costs.
Pending application(s), if any, shall stand disposed of.
…………….J.
( B.V. NAGARATHNA )
…………….J.
( UJJAL BHUYAN )
NEW DELHI,
NOVEMBER 24, 2023
8. In view of the ratio laid down by the Hon'ble Courts referred to supra and since in the present case appellant has not responded to any of the notices issued, it has to be inferred that the appellant is not 11 ITA.No.640/Hyd./2025
interested in pursuing his appeal. In due respect to the principles of natural justice, several opportunities for presenting his case were provided to the appellant but in vain. The grounds of appeal are not adjudicated separately. In view of these facts and circumstances, the appeal is dismissed for non-prosecution.”
Thus, it is manifest from the impugned order that the learned CIT(A) has not adjudicated the appeal on merits and, therefore, the order passed by the learned CIT(A) is not in accordance with the provisions of sec.250(6) of the Income Tax Act, 1961. Hence, in the facts and circumstances of the case and in the interest of justice, the impugned order of the learned CIT(A) is set-aside and the matter is remanded to the record of the learned CIT(A) for fresh adjudication of the appeal of the assessee on merits, after giving further opportunity of hearing to the assessee.
In the result, appeal of the Assessee is allowed for statistical purposes.
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ITA.No.640/Hyd./2025
Order pronounced in the open Court on the conclusion of the hearing i.e., on 27.10.2025. [MANJUNATHA G.]
[VIJAY PAL RAO]
ACCOUNTANT MEMBER VICE PRESIDENT
Hyderabad, Dated 27th October, 2025
VBP
Copy to :
Prasada Rao Ganipineni, Plot No.9, Teckemitta, Opp. Krishna Agencies, NELLORE – 524 004. Andhra Pradesh. 2. The ACIT, Circle-1, Aditi Crystal, Dhandayadhapuram, GNT Road, NELLORE – 524 003. Andhra Pradesh. 3. The CIT(A), Hyderabad-11, Hyderabad. 4. Pr. CIT-(Central), Hyderabad 5. DR, ITAT “B” Bench, Hyderabad. 6. Guard file.
BY ORDER,
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