Appeal Cannot Be Dismissed For Non-Prosecution Without Discussing Merits 

Facts of the Case:- The Petitioner filed the writ petition before the Hon’ble Court challenging the appellate order which dismissed the appeal for non-prosecution, which was filed in time and the appellate authority merely for the reason of absence of the petitioner or the authorised representative rejected the appeal.

Held: –

• The Hon’ble High Court after considering the submissions made and facts of the case, found that this Court has already held in Purushottam Stores vs. The State of Bihar & Ors; CWJC No. 4349 of 2023 decided on 25.04.2023; looking at the provisions of the Bihar Goods and Services Tax Act especially sub-sections (8), (9), (10), (11) and (12) of Section 107 of the Act, that the Appellate Authority has a duty and an obligation under the statute to look into the merits of the matter and also examine the grounds raised by the appellant, even if there is no presence recorded of the appellant before the Appellate Authority and decide the issue on merits. The Appellate Authority by dismissing the appeal for non-prosecution would be abdicating its powers looking at the provisions where the Appellate Authority has been empowered to conduct such further enquiry as found necessary to decide the appeal, which decision also shall be on the points raised.
• Therefore, the Hon’ble Court set aside the order dated 28.01.2023 and directed for restoration of appeal before the Appellate Authority. The petitioner shall appear before the Appellate Authority on 10.01.2024. The Appellate Authority or its office shall fix a date of hearing on the said date, with due acknowledgment taken from the appellant; if the date of hearing is issued from the office, proceed with the hearing on the date fixed and dispose of the appeal.  The Petitioner was also directed to 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 Appellate Authority shall consider the appeal on merits and pass a speaking order. 

The Hon’ble Court with the aforesaid observations and findings, allowed the writ petition with the direction as stated above.

To read the complete judgment 2023 Taxo.online 1395