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JUDGMENT Satyanarayana Rao, J.-These are applications to issue writs of certiorari to quash the proceedings of the Income-tax Appellate Tribunal. By virtue of the rule-making power vested in the Appellate Tribunal under section 5-A, sub-clause (8), rule 24 of the Income-tax Appellate Tribunal Rules, 1946, was made ; and it provides: "Where on the day fixed for hearing or any other day to which the bearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or may hear it ex parte." The point raised in these petitions is that this rule is ultra vires and is opposed to section 33, sub-section (4), of the Income-tax Act. The rule-making power under section 5-A, sub-clause (8), is of course subject to the provisions of the Act, and the scope of the power is to regulate the procedure of the Appellate Tribunal and the procedure of Benches of the Tribunal in all matters arising out of the discharge of its functions, including the places at which the Benches shall hold their sittings. It is essentially a power to regulate the Tribunal's own procedure, but is subject to the provisions of the Act. The point for decision therefore is whether the rule is in conflict with section 33, sub-section (4), of the Act. The sub-section runs as follows:- " The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such order to the assessee and to the Commissioner." The argument is that under this sub-section, even if the party did not avail himself of the opportunity given to him of being heard and was not present on the day fixed for hearing, it was the duty of the Appellate Tribunal to dispose of the appeal on merits, and that it could not dismiss it for default. On this construction it was contended that the rule providing for dismissal for default was in conflict with subsection (4) of section 33 and was therefore ultra vires. We are unable to place such a narrow construction on sub-section (4) of section 33. It requires the Appellate Tribunal to give both…

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