Appellate Authority is not empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative

The Hon'ble Patna High Court in the case of Nav Nirman Construction v. Union of India [CWJC No. 16940 of 2023 dated December 6, 2023] set aside the appellate order and directed that the Appeal be restored before the appellate authority, thereby holding that appellate authority is not empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative as appellate authority has a duty and obligation to take into consideration the merits of the matter, examine the grounds raised by the appellant even if the appellant or authorised representative presence is not recorded; and decide the issue on merits.

Facts

Nav Nirman Construction ("the Petitioner") has filed the writ petition challenging the appellate order dated January 28, 2023, ("the Impugned Order") wherein the appeal was dismissed by the Revenue Department ("the Respondent") on the ground of non-prosecution wherein the Petitioner or Petitioner authorised representative was absent during the appellate proceedings. 

Issue

Whether Appellate Authority is empowered to dismiss the appeal for non-prosecution due to non-appearance of Assessee or authorised representative?

Held

The Hon'ble Patna High Court in the case of CWJC No. 16940 of 2023 held as under:

• Relying upon the judgement of Hon'ble Patna High Court in the case of Purushottam Stores v. State of Bihar and Ors. [CWJC No. 4349 of 2023 dated April 25, 2023], noted that, the sub-sections (8), (9), (10), (11), and (12) of the Central Goods and Services Act, 2017 ("the CGST Act") and corresponding provisions of the Bihar GST Act, the appellate authority has a duty and obligation to take into consideration the merits of the matter, examine the grounds raised by the Appellant even if the Appellant or authorised representative presence is not recorded; and decide the issue on merits. 
• Further Noted that, the appellate authority the powers of conducting further enquiry for deciding the appeal would be relinquished, as and when the appeal is dismissed for non-prosecution.
• Held that, the Impugned Order is set aside. 
• Directed that, the appeal be restored before the Respondent appellate authority. 
• Further Directed that, the Petitioner shall cooperate in the hearing of the appeal and even if there is absence of the appellant or his authorized representative on the date of hearing, the Respondent appellate authority shall consider the appeal on merits and pass a speaking order.