BHIMRAJ D JAIN, V. ITO 24(1)(3),

MA 116/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2133 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 25-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CAPT PRADEEP ARYA
• Keywords: Opportunity of being heard; Question of law; Reasonable cause; Procedural lapse

Judgement Text

INCOME TAX APPELLATE TRIBUNAL,MUMBAI - B BENCH , , BEFORE S/SH. VIJAY PAL RAO, JUDICIAL MEMBER & SHRI RAJENDRA,ACCOUNTANT MEMBER MA NO.116/MUM/2014-ARISING OUT OF ITA NO. 4851/M UM/2012-ASSESSMENT YEAR 2007-08 SHRI BHIMRAJ D. JAIN, 2, JAGIRDAR MANZIL, DAFTARY ROAD, MALAD EAST, MUMBAI-400016 PAN: AAACB2994F VS. ITO 24(1)(3), C-13, 5 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX (E) MUMBAI-400051 ( / APPELLANT ) ( / RESPONDENT ) APPELLANT BY : SHRI DHARMESH SHAH RESPONDENT BY : CAPT. PRADEEP ARYA ! / DATE OF HEARING : 20-06-2014 '#$% ! / DATE OF PRONOUNCEMENT : 04-07-2014 &' / O R D E R PER RAJENDRA, A.M.: VIDE HIS APPLICATION,DATE25.03.2014,FILED U/S.24 OF THE INCOME-TAX APPELLATE TRIBUNAL RULES, 1963(RULES) ASSESSEE HAS STATED THAT APPEAL WAS DIS MISSED BY THE TRIBUNAL ON 12.02.2014 FOR NON- PURSUANCE CONSIDERING THE JUDGMENT OF B.N.BHATTACHA RGEE (118 ITR 460) AND MULTIPLAN INDIA PRIVATE LTD.(38 ITD 320),THAT MATTER SHOULD BE REST ORED UNDER RULE 24 OF THE RULES,THAT HE FAILED TO ISSUE AUTHORITY LETTER TO HIS AUTHORISED REPRESENTA TIVE(AR) AND ALSO FORGOT TO MAKE ALTERNATIVE ARRANGEMENT FOR SEEKING ADJOURNMENT,THAT HE HAD INF ORMED THE AR THAT MATTER WOULD BE HEARD ON 6 TH MAY 2014,THAT MATTER WAS NOT DECIDED ON MERITS.THE APPLICATION FILED BY THE ASSESSEE IS ACCOMPANIED BY AN AFFIDAVIT,DATED 22.03.2014,OF ONE NIRANJAN MODI,CHARTERED ACCOUNTANT.IN HIS AFFIDAVIT,HE HAS STATED THAT DUE TO FAILURE ON THE PART OF THE ASSESSEE TO ISSUE AUTHORITY LETTER TO H IS AR,NO ONE APPEARED BEFORE THE TRIBUNAL.IN HIS AFFID AVIT DATED,19.06.2014,THE ASSESSEE HAS STATED THAT ON 04.09.2013,HEARING WAS ATTENDED BY HIS EMPL OYEE,THAT HEARING WAS ADJOURNED TO 06.02. 2014,THAT HE WAS INADVERTENTLY GIVEN TO UNDERSTAND BY HIS EMPLOYEE THAT HEARING WAS ADJOURNED 6 TH MAY 2014,THAT ONLY UPON RECEIVING THE ORDER OF THE TRIBUNAL,HE REALIESD THAT HEARING WAS ADJOURNED ON 06.02.2014. M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 2 2 .BEFORE US,AR ADVANCED THE SAME ARGUMENTS WHICH ARE PART OF THE AFFIDAVITS OF THE C.A. AND BHIMRAJ D. JAIN.IT WAS ALSO STATED THAT MATTER WAS NOT DECIDED ON MERITS,THAT MATTER SHOULD BE RECALLED AND A FRESH DATE OF HEARING SHOULD BE GIVE N.DEPARTMENTAL REPRESENTATIVE(DR) STATED THAT TRIBUNAL HAD ALREADY PASSED A REASONED ORDER, IT WA S NOT AN EX-PARTE ORDER. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.BEFORE PROCEEDING FURTHER,WE ARE OF THE OPINION THAT IT WOULD BE BETT ER TO MENTION THE HISTORICAL BACKGROUND AND SOME OF THE MAJOR PRINCIPLES GOVERNING THE RULE UND ER CONSIDERATION. PROVISIONS OF RULE 24 OF THE RULES IS MORE OR LESS SIMILAR TO ORDER 9, RULE 13 OF THE CIVIL PROCEDURE CODE,1908.COINCIDENTALLY,RULE24 OF APPELLATE TRIBUN AL RULES,1946 DEALT THE SAME SUBJECT I.E. DISPOSAL OF APPEAL BY THE TRIBUNAL ON FAILURE OF TH E ASSESSEE TO APPEAR BEFORE IT.BEFORE THE TRIBUNAL RULES OF 1946 WERE FRAMED,RULE 37A DEALT W ITH THE SUBJECT.RULE 37A,PROVIDED FOR RESTORATION OF APPEALS DISMISSED FOR DEFAULT.BUT,RU LE 24 OF THE 1946 RULES DID NOT PROVIDE FOR RESTORATION OF APPEAL EVEN IF THE MATTER WAS DISPOS ED OFF EX PARTE.WE WOULD LIKE TO REPRODUCE THE RULE WHICH READ AS UNDER: 'WHERE ON THE DAY FIXED FOR HEARING OR ANY OTHER DA Y TO WHICH THE HEARING 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.' IN 1948,IT WAS AMENDED BY A NOTIFICATION DATED JANU ARY 26,1948 AND THE AMENDED RULE WAS AS UNDER: ' WHERE ON THE DAY FIXED FOR HEARING OR ANY OTHER DAY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT APPEAR WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISMISS THE APPEAL FOR DEFAULT.' ONE OF THE FIRST CASES;WHERE THE TRIBUNAL HAD DECID ED THE ISSUE EX PARTE AND ISSUE OF RESTORING IT HAD BEEN AGITATED;IS THE MATTER OF M. X. DE NORNHA AND SONS.IN THAT CASE A NOTICE FIXING THE DATE OF HEARING OF APPEAL WAS SENT BY THE TRIBUNAL BY RE GISTERED POST TO THE ADDRESS GIVEN BY THE ASSESSEE FIRM.FOLLOWING WERE THE REMARKS OF THE NOT ICE; M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 3 'TAKE NOTICE THAT, IN DEFAULT OF YOUR APPEARANCE, T HE APPEAL WILL BE HEARD AND DETERMINED IN YOUR ABSENCE'. THE NOTICE WAS RECEIVED BY AN EMPLOYEE OF THE FIRM, WHO USED THE SEAL OF THE FIRM, ON ITS BEHALF. ON THE DAY FIXED FOR HEARING OF THE APPEAL AND ON T HE NEXT DAY TO WHICH THE CASE WAS ADJOURNED BY THE TRIBUNAL,NO ONE APPEARED AND THE TRIBUNAL DISMI SSED THE APPEAL FOR DEFAULT.MATTER TRAVELLED TO HONBLE ALLAHABAD HIGH COURT.THE ASSESSEE ARGUED TH AT THE ABSENCE OF A PROVISION ALLOWING RESTORATION OF SUCH APPEALS MAKES THE RULE ULTRA VI RES.DECIDING THE APPEAL IF FAVOUR OF THE ASSESSEE, THE HONBLE COURT (18 ITR 928) HELD AS UNDER: THERE WAS NOTHING IN THE NOTICE TO GIVE TO THE ASS ESSEE THE INFORMATION THAT IF THE ASSESSEE DID NOT APPEAR OR DID NOT ENGAGE ANY COUNSEL, HIS CASE WILL NOT BE HEARD AT ALL AND WILL BE DISMISSED FOR DEFAULT.A QUESTION OF LAW THUS AROSE WHETHER, IN VI EW OF THE FORM OF THE NOTICE, IT WAS OPEN TO THE INCOME-TAX APPELLATE TRIBUNAL TO HAVE DISMISSED THE CASE FOR DEFAULT ON 18TH JULY, 1947, WHEN THE ASSESSEE DID APPEAR AND WAS NOT REPRESENTED BEFORE IT. THIS QUESTION IS OF IMPORTANCE TO THE ASSESSEE BECAUSE IF IT IS HELD THAT THE TRIBUNAL, I N VIEW OF THE FORM OF THE NOTICE, MIGHT HAVE HEARD THE CASE EX PARTE BUT COULD NOT DISMISS IT FOR DEFA ULT, THE CASE WILL HAVE TO BE REHEARD BY THE TRIBUNAL. THE WORDS IN THE NOTICE BEING THAT THE APPEAL WILL BE 'HEARD AND DETERMINED IN THE ABSENCE OF THE ASSESSEE ',THE TRIBUNAL SHOULD HAVE DECIDED THE CAS E ON MERITS AND THE DISMISSAL FOR DEFAULT CANNOT BE SAID TO BE A HEARING OF THE APPEAL AND IT S DETERMINATION. THE WORD ' DETERMINATION ' MUST MEAN A DECISION ON THE POINTS RAISED IN THE CA SE AND NOT MERELY AN ORDER OF DISMISSAL FOR DEFAULT.WE ARE, THEREFORE, OF OPINION THAT THE TRIB UNAL ERRED IN DISMISSING THE APPEAL FOR DEFAULT,IF IT WANTED TO HAVE THE RIGHT TO DISMISS THE APPEAL F OR DEFAULT, IT OUGHT NOT TO HAVE ISSUED A NOTICE TO THE ASSESSEE THAT IF HE DID NOT APPEAR, THE CASE WO ULD BE HEARD AND DETERMINED IN HIS ABSENCE. THE ASSESSEE WAS NOT BOUND TO ENGAGE COUNSEL AND HE MIG HT HAVE FELT WELL SATISFIED THAT THE MERITS OF HIS CASE WERE SUCH THAT THE TRIBUNAL,MERELY BY LOOK ING INTO THE ORDER UNDER APPEAL,WOULD DECIDE THE CASE IN HIS FAVOUR. 3.A. THE ISSUE THAT AS TO WHETHER THE PROVISIONS OF RULE 24 WERE ULTRA VIRUS OR INTRA VIRUS WAS AGITATED BEFORE THE HONBLE MADRAS HIGH COURT IN T HE MATTER OF S.CHENNIAPPA MUDALIAR (53 ITR M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 4 323).DISSENTING FROM THE DECISIONS OF SHRI BHAGWAN RADHA KISHEN(22ITR 104) AND RAVULA SUBBA RAO(27ITR164)FULL BENCH OF HONBLE MADRAS HIG H COURT HELD THAT RULE 24 OF THE APPELLATE TRIBUNAL RULES,1946,WAS ULTRA VIRES.LATER ON HONBLE MP HIGH COURT IN THE MATTER OF HARNANDRAI SHRIKISHAN AKODIA(61ITR50)FOLLOWED THE D ECISION OF MADRAS HIGH COURT.MEANWHILE THE DEPARTMENT FILED AN APPEAL IN THE MATTER OF S C HENNIAPPA MUDALIAR BEFORE THE APEX COURT. DISMISSING THE APPEAL, HONBLE COURT(74ITR41) HELD AS UNDER: RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1946, AS AMENDED IN 1948, IN SO FAR AS IT ENABLES THE DISMISSAL OF AN APPEAL BEFORE THE ITAT FOR DEFAULT OF APPEARANCE OF THE APPELLANT, CLEARLY COMES INTO CONFLICT WITH SECTION 33(4) AND IS,THEREFORE,U LTRA VIRES. RULE 24 AS IT NOW STANDS UNDER RULES,1963 READS AS UNDER: ' 24. DISMISSAL OF APPEAL FOR APPELLANT'S DEFAULT, ETC.-WHERE ON THE DAY FIXED FOR HEARING OR ANY OTHER DAY TO WHICH THE HEARING MAY BE ADJOURNED, TH E APPELLANT DOES NOT APPEAR WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY, IN ITS DISCRETION, EITHER DISMISS THE APPEAL FOR DEFAULT O R MAY HEAR IT EX PARTE: PROVIDED THAT WHERE THE APPEAL HAS BEEN DISMISSED F OR DEFAULT AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WA S SUFFICIENT CAUSE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE DISMISSAL AND RESTORING THE APPEAL. ' FROM THE ABOVE IT IS CLEAR THAT THE PROVISO TO RULE 24 OF THE RULES,HAS REMOVED THE DEFECTIVE PROVISION IN THE RULES STRUCK DOWN BY THE SUPREME C OURT BY PROVIDING FOR THE SETTING ASIDE OF AN EX PARTE ORDER ON THE TRIBUNAL BEING SATISFIED AS T O SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE APPELLANT. COURTS ARE OF THE VIEW THAT THE TRIBUNAL HAS THE PO WER AND INDEED THE OBLIGATION TO DISPOSE OF THE APPEAL AND PASS SUCH ORDER THEREON AFTER GIVING BOT H THE PARTIES IN APPEAL AN OPPORTUNITY OF BEING HEARD. IT IS NECESSARY, THEREFORE,THAT THE TRIBUNAL SHOULD HAVE ALL THE POWERS TO ENSURE THAT THE OPPORTUNITY THAT THE TRIBUNAL GRANTS TO THE PARTIES CONCERNED IS FAIR, ADEQUATE AND PROPER.HONBLE JURISDICTIONAL HIGH COURT HAS EXPRESSED ITS VIEWS I N THIS REGARD,IN THE MATTER OF K.T. UDESHI AS UNDER (114ITR542); M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 5 THE APPELLATE TRIBUNAL IS REQUIRED TO GIVE A DECIS ION ON MERITS ON QUESTIONS OF FACT AND LAW AND CANNOT DISPOSE OF AN APPEAL BY A SIMPLE DISMISSAL F OR DEFAULT ON THE GROUND THAT THE PARTY CONCERNED HAS FAILED TO APPEAR. 3.B. IT IS SAID THAT THE RULE 24,AS IT NOW STANDS ALONG WITH THE PROVISO,HAS BROUGHT ABOUT A SEA CHANGE IN THE LAW.BUT,IT IS ALSO A FACT THAT THE HO NBLE SUPREME COURT HAS NOT STRUCK DOWN RULE 24 OF THE RULES,AS IT NOW STANDS SINCE1963.WHILE DECI DING THE MATTER OF S CHENNIAPPA MUDALIAR (SUPRA)THE SUPREME COURT WAS CONSIDERING THE VALIDI TY OF RULE 24 OF 1946/1948 RULES. TAKING IN TO CONSIDERATION THE PROVISIONS OF THE RULE 24 HON BLE PATNA HIGH COURT HAS,IN THE MATTER OF (DR.) (MRS.)KRISHNA RANA(167ITR652),DISCUSSED THE SCOPE O F THE SAID SECTION IN FOLLOWING WORDS: THE INCOME-TAX APPELLATE TRIBUNAL IS NOT A COURT.T HE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDERS.HENCE, THE TRIBUNAL CANNOT BE CLOTHED WITH S OME INCIDENTAL POWERS,PERMITTING IT TO DO INDIRECTLY WHAT IT CANNOT DO DIRECTLY.RULE 24 OF TH E INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963, WHICH DEALS WITH THE POWERS OF THE TRIBUNAL TO DISM ISS AN APPEAL FOR THE APPELLANT'S DEFAULT EXPRESSLY PERMITS THE TRIBUNAL TO RESTORE AN APPEAL FOR REHEARING WHERE THE APPEAL HAS BEEN DISMISSED FOR DEFAULT. NO SUCH PROVISION HAS BEEN MADE IN REGARD TO DISMIS SAL OF APPEALS ON MERITS ( EMPHASIS SUPPLIED )..RECALLING OF AN ORDER AUTOMATICALLY NECESSITA TES REHEARING AND RE-ADJUDICATION OF THE ENTIRE SUBJECT-MATTER OF APP EAL.THE DISPUTE NO LONGER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES,1963,AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE.WE MAY FURTHER ADD HERE THAT THERE MAY BE CASES WHERE THE TRIBUNAL ITSELF COMES TO NOTICE THAT THE ORDER WAS PASSED WITHOUT ANY ISS UE OF NOTICE OR THERE WERE SUCH PROCEDURAL LAPSES WHICH RENDERED THE ORDER ILLICIT.IN SUCH CAS ES, THE ORDER MAY BE SET ASIDE AND A REHEARING MAY BE DIRECTED. THIS IS SO BECAUSE NO PREJUDICE SH OULD BE CAUSED TO A PARTY FOR A WRONG COMMITTED BY THE TRIBUNAL. IN OUR OPINION,THE ABOVE JUDGMENT CATEGORICALLY LAY S DOWN THE RULE THAT IF A MATTER IS DECIDED ON MERITS SAME CANNOT BE RECALLED UNDER RULE 24 OF THE RULES.IN ANOTHER WORDS,MATTERS DECIDED BY THE TRIBUNAL AFTER CONSIDERING THE AVAILABLE MATERI AL CANNOT BE CHALLENGED UNDER RULE 24. M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 6 3.C. PROVISO TO RULE HAS CARVED OUT AN EXCEPTION FOR NON APPEARANCE AND THAT IS THE EXISTENCE OF A REASONABLE CAUSE.TRIBUNAL IN DECIDING WHETHER THERE WAS SUFFICIENT CAUSE OR NOT IS EXPECTED TO CONSIDER WHETHER OR NOT THE PARTY WAS REALLY INTERE STED TO APPEAR ON THE DATE FIXED FOR THE CASE ;IF HE HONESTLY INTENDED TO REMAIN PRESENT AND WAS NOT GUILTY OF MISCONDUCT OR GROSS NEGLIGENCE HE SHOULD BE GIVEN A CHANCE.IN OUR OPINION,ONUS IS ALW AYS ON THE ASSESSEE TO PROVE EXISTENCE OF SUFFICIENT CAUSE.BEFORE A CAUSE CAN BE HELD TO BE S UFFICIENT,IT MUST BE FOUND AS A FACT THAT A PARTICULAR CAUSE OPERATED UPON THE MIND OF THE ASSE SSEE WHICH PREVENTED IT FOR PARTICULAR OMISSION OR COMMISSION.IN OTHER WORDS THE CAUSE SHOULD BE SO JUSTIFIABLE THAT A PERSON INSTRUCTED UNDER LAW SHOULD BELIEVE THE EXPLANATION AS PLAUSIBLE.WE ARE AWARE THAT THE WORDS SUFFICIENT CAUSE HAVE NOT BEEN DEFINED UNDER THE ACT,BUT IN THE CONTEXT OF TA XATION JURISPRUDENCE,THEY WOULD MEAN A CAUSE WHICH IS BEYOND THE CONTROL OF THE ASSESSEE I.E.A C AUSE THAT PREVENTS A MAN OF ORDINARY PRUDENCE, ACTING WITHOUT NEGLIGENCE OR INACTION OR WANT OF BO NA FIDES UNDER NORMAL CIRCUMSTANCES ( EMPHASIS SUPPLIED ) .THUS,ABSENCE OF NEGLIGENCE OR INACTION ARE BASIC I NGREDIENTS OF SUFFICIENT CAUSE.IN THESE CIRCUMSTANCES,IT CAN S AFELY BE HELD THAT IF A PERSON DOES NOT BEHAVE IN A PARTICULAR MANNER;AS A PERSON OF AVERAGE INTELLIG ENCE AND ORDINARY PRUDENCE WOULD BEHAVE IN SIMILAR SET OF CIRCUMSTANCES; IT HAS TO HELD THAT I N SUCH MATTER SUFFICIENT CAUSE DID NOT EXIST. SECONDLY,THERE CANNOT BE ANY STRAIT JACKET FORMULA TO DECIDE THE ISSUE OF SUFFICIENCY-IT DEPENDS UPON THE FACTS OF EACH CASE. 3.D. NOW WE WOULD LIKE TO DISCUSS THE CASES WHERE THE HO NBLE COURTS HAVE DISCUSSED THE ISSUE OF SUFFICIENCY/INSUFFICIENCY OF CAUSE WHILE DECIDING T HE MATTER RELATED WITH RULE 24.IN THE MATTER OF HEMLA HOSIERY MFG. DYEING AND PRINTING MILLS P. LTD . NOTICES OF HEARING WERE NOT SERVED UPON THE ASSESSEE IN ONE APPEAL AND UPON THE RESPONDENT IN THE OTHER.JUSTIFYING THE RECALLING OF THE ORDER BY THE TRIBUNAL UNDER RULE 24 OF THE RULES,HO NBLE DELHI HIGH COURT HELD THAT THE TRIBUNAL HAD RECORDED A CLEAR FINDING OF FACT THAT THE NOTIC E REGARDING THE HEARING OF THE APPEAL WAS NOT PROPERLY SERVED,THAT THE NON-APPEARANCE OF THE APPE LLANT IN THE APPEAL FILED BY IT OR IN THE CROSS APPEAL FILED BY THE REVENUE WAS FOR A SUFFICIENT CA USE.(286 ITR 646) M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 7 SIMILARLY,IN THE CASE OF RAVI PRAKASH KHEMKA,HONBL E MADRAS HIGH COURT AFTER CONSIDERING THE FACTS OF THE CASE HELD THAT THERE WERE SUFFICIENT C AUSE FOR NON APPEARANCE OF THE ASSESSEE DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL AND THERE FORE ORDER PASSED BY THE TRIBUNAL SHOULD HAVE BEEN RECALLED UNDER RULE 24 OF THE RULES(288ITR362) .IN THAT MATTER THE APPEALS FILED BY THE ASSESSEE WERE POSTED FOR FINAL HEARING AND THE AUTH ORISED REPRESENTATIVE OF THE ASSESSEE,BY A LETTER ADDRESSED TO THE TRIBUNAL,SOUGHT AN ADJOURNMENT ON THE GROUND THAT HE HAD TO ATTEND A FAMILY FUNCTION AND WAS NOT IN A POSITION TO ATTEND THE HE ARING.BUT,THE TRIBUNAL DECIDED THE APPEALS ON THE MERITS.THEREAFTER THE PETITIONERS HAD FILED PET ITIONS UNDER RULE 24 OF THE RULES,TO SET ASIDE THE EX PARTE ORDERS PASSED BY IT AND TO RESTORE THE APP EALS FOR DISPOSAL AFRESH ON THE MERITS, BUT THE TRIBUNAL DISMISSED THE PETITIONS.DECIDING THE WRIT PETITION FILED BY THE ASSESSEE HONBLE COURT HELD AS UNDER: .SUFFICIENT CAUSE HAD BEEN SHOWN BY THE PETITIONE RS FOR NON-APPEARANCE BEFORE THE TRIBUNAL, ON THE DATE OF HEARING. CONSIDERING THIS,THE TRIBUNAL OUGHT TO HAVE ALLOWED THE PETITIONS. THE ORDER OF THE TRIBUNAL WAS LIABLE TO BE SET ASIDE AND THE APP EALS RESTORED FOR THE DISPOSAL AFRESH. ADJOURNMENT SOUGHT IN VIEW OF COUNSEL BEING PROFESS IONALLY BUSY IN HIGH COURT,HAS BEEN HELD A SUFFICIENT CAUSE FOR NON APPEARANCE BEFORE THE TRIB UNAL WITH REGARD TO INVOKING OF THE PROVISIONS OF RULE 24 OF THE RULES BY THE HONBLE MP HIGH COUR T IN THE CASE OF BABULAL JAIN(298ITR369).IN THE CASE OF DEVENDRA G. PASALE HONBLE GUJARAT HIGH COURT(333ITR263) HAD FOUND THAT THERE WERE SUFFICIENT CAUSE FOR THE ASSESSEE TO NOT TO AP PEAR BEFORE THE TRIBUNAL SO IT DIRECTED THE TRIBUNAL TO SET ASIDE EX PARTE ORDERS.IN THE CASE O F ANIL KUMAR AGRAHARI,HONBLE MP HIGH COURT HAD REFERRED TO RULE 24 OF THE RULES AND HAD HELD T HAT THE TRIBUNAL COULD NOT HAVE DISMISSED THE APPEAL WITHOUT GOING INTO THE MERITS OF THE CASE BY REJECTING THE ADJOURNMENT APPLICATION FILED BY THE AR. (323ITR260).IN THAT MATTER THE TRIBUNAL HAD DECIDED THE ISSUE EX PARTE. BUT,WHERE THE ASSESSEES HAVE NOT DEMONSTRATED THE E XISTENCE OF SUFFICIENT CAUSE,COURTS HAVE TAKEN AN ADVERSE VIEW.IN THE MATTER OF GAUHATI ROLLER FL OUR MILLS LTD.(308ITR368),THE ISSUE BEFORE THE HONBLE GAUHATI HIGH COURT WAS THAT AS TO WHETHER S UFFICIENT CAUSE,AS ENVISAGED BY THE RULE 24 OF THE RULES,WAS EXISTING OR NOT.IN THAT MATTER BY AN EX PARTE ORDER THE TRIBUNAL HAD PARTLY ALLOWED M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 8 THE APPEALS PREFERRED BY THE ASSESSEE IN RESPECT OF THE AY.S.1984-85 TO 1989-90.THE ASSESSEE FILED A MISCELLANEOUS APPLICATION FOR SETTING ASIDE THE E X PARTE ORDER. THE TRIBUNAL REFUSED TO EXERCISE ITS POWERS UNDER THE SECOND PROVISO TO RULE 25 OF T HE 1963 RULES, ON THE GROUND THAT THE FACT THAT IT WAS CERTIFIED BY THE POSTAL DEPARTMENT THAT THE ADJ OURNED DATE WAS NOTIFIED TO THE ASSESSEE WAS NOT CONTROVERTED BY THE ASSESSEE BY PRODUCING ANY E VIDENCE.ASSESSEE FILED WRIT PETITION BEFORE THE HONBLE HIGH COURT AND DISMISSING THE SAME IT HELD THAT THE TRIBUNAL COULD NOT BE FAULTED FOR THE ABSENCE OF THE ASSESSEE AS THE TRIBUNAL HAD TAKEN A LL THE REQUISITE STEPS TO ENSURE THAT AN OPPORTUNITY OF HEARING WAS MADE AVAILABLE TO THE AS SESSEE. 4. IT WOULD BE APPROPRIATE TO CONSIDER THE FACTS OF TH E CASE UNDER CONSIDERATION.THE ASSESSEE HAD RAISED FOUR GROUNDS OF APPEAL BEFORE THE TRIBUNAL.D URING THE ASSESSMENT/APPELLATE PROCEEDINGS,THE AO/FAA HAD MADE/CONFIRMED CERTAIN ADDITIONS BECAUSE HE HAD NOT PRODUCED BASIC EVIDENCES BEFORE THEM FOR THE CLAIMS MADE HIM IN HIS RETURN.W HILE DECIDING THE APPEAL,TRIBUNAL DELETED ONE OF THE ADDITIONS AND HAD CONFIRMED THE REMAINING TH REE ADDITIONS AFTER DISCUSSING THE MERITS OF EACH OF THE ISSUES.ASSESSEE DID NOT FILE ANY PAPER/ DOCUMENT/EVIDENCE BEFORE THE TRIBUNAL ALSO EVEN THOUGH HE KNEW VERY WELL THAT BOTH THE REVENUE AUTHORITIES HAD TAKE AN ADVERSE VIEW AGAINST HIM FOR NOT FURNISHING NECESSARY DETAILS.RECORDS OF THE TRIBUNAL REVEAL THAT THE IMPUGNED ORDER WAS DISPATCHED TO HIM;AT THE ADDRESS GIVEN IN FORM NO.36;ON 18.02.2014 BY A REGISTERED LETTER AND WAS RECEIVED AT THE SAID ADDRESS ON 20.02. 2014.AS THE APPLICATION FILED BY THE ASSESSEE DOES NOT BEAR ANY DATE,SO WE ARE NOT IN A POSITION TO FIND O UT AS TO WHEN THE APPLICATION WAS FILED.WE FURTHER FIND THAT THE ASSESSEE HAS FILED HIS AFFIDA VIT ON 19 TH JUNE,2014 JUST BEFORE THE HEARING OF THE APPLICATION FILED BY HIM,THOUGH THE AFFIDAVIT OF TH E CA WAS PREPARED ON 20.03.2014.THUS,IT IS CLEAR THAT EVEN AFTER RECEIVING THE ORDER OF THE TR IBUNAL,THE ASSESSEE TOOK ITS OWN TIME TO FILE THE APPLICATION.THOUGH THE ASSESSEE HAS CLAIMED THAT HI S EMPLOYEE HAD MISINFORMED HIM ABOUT THE NEXT DATE OF HEARING,BUT REASONS FOR NOT FILING AN AFFIDAVIT OF THE EMPLOYEE CONCERNED ARE KNOWN TO THE ASSESSEE ONLY. AS STATED EARLIER,THE VERY FIRST LINE OF THE AVERME NTS SPEAKS OF DISPOSAL OF THE APPEAL BY THE TRIBUNAL FOLLOWING THE DECISIONS OF MULTIPLAN INDIA PVT.LTD. AND B.N.BHATTACHARGEE (SUPRA) FOR M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 9 NON PURSUANCE.IT SHOWS THAT THE ASSESSEE HAS NOT GO NE THROUGH THE IMPUGNED ORDER.THERE IS NO WHISPER OF NON PURSUANCE OF THE CASE OR REFERENCE O F THE ABOVE MENTIONED CASES IN THE ORDER OF THE TRIBUNAL.MATTER WAS DECIDED BY THE TRIBUNAL ON MERI TS.ALL THE ABOVE FACTORS CLEARLY PROVE THAT THE ASSESSEE IS NOT VIGILANT AND IS GUILTY OF INACTION AND CARELESSNESS FORM THE VERY BEGINNING I.E.FROM THE TIME OF SCRUTINY ASSESSMENT TO FILING OF PRESEN T APPLICATION.WE HAVE ALSO TAKEN NOTE OF THE FACT THAT THE HE HAS MENTIONED IN HIS AFFIDAVIT THAT HE HAD FAILED TO ISSUE AUTHORITY LETTER TO HIS AR AND ALSO FORGOT TO MAKE ALTERNATIVE ARRANGEMENT FOR SEE KING ADJOURNMENT. IF ALL THE ABOVE FACTORS ARE ANALYSED CUMULATIVELY, THERE IS NO DOUBT THAT THE BEHAVIOR OF THE ASSESSEE WAS NOT OF A MAN OF ORDINARY PRUDENCE ACT ING WITHOUT NEGLIGENCE OR INACTION.IN OTHER WORDS,NO PRUDENT OR CAREFUL PERSON OF AVERAGE INTEL LIGENCE WOULD HAVE BEHAVED IN SUCH A CARELESS MANNER.ALLOWING THE APPEAL FILED BY HIM AND ACCEDIN G TO RELIEF REQUESTED FOR WILL AMOUNT TO REWARDING A PERSON WHO IS NEITHER VIGILANT NOR CARE FUL.PREMIUM CANNOT AND SHOULD NOT BE PAID TO THOSE ASSESSEE WHO TAKE JUDICIAL PROCEEDINGS FOR GR ANTED AND WANT TO CONSUME JUDICIAL TIME BY FILING APPEALS/APPLICATIONS WITHOUT SUPPORTING EVID ENCES. WE ARE SATISFIED THAT EVEN IF ANY PREJUDICE HAS RES ULTED TO THE PARTY BECAUSE OF THE ORDER DATED 12. 02.2014,IT IS NOT ATTRIBUTABLE TO THE TRIBUNAL'S MI STAKE,ERROR OR OMISSION AND THE ASSESSEE HAS NOT FURNISHED ANY SUFFICIENT REASON FOR NOT ATTENDING T HE HEARING BEFORE THE TRIBUNAL ON THE DATE OF HEARING.THEREFORE,WE ARE NOT INCLINED TO ACCEDE TO THE REQUEST MADE BY THE ASSESSEE IN HIS APPLICATION. AS A RESULT, APPLICATION FILED BY THE ASSESSEE S TANDS DISMISSED. ( %) * ( %) * ( %) * ( %) * +( +( +( +( , , , , - - - - . . . . / / / / & & & & 0 00 0 1 1 1 1 . . . . 23 2323 23 . ORDER PRONOUNCED IN TH E OPEN COURT ON 04TH JULY,2014. &' '#$% )5 . 4 # / 6 SD/- SD/- ( / VIJAY PAL RAO) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER )7 / MUMBAI, . /DATE: 04.07.2014 SK M A NO. 116/MUM/2014(ARISING OUT OF ITA NO. 4851/MUM/2 012) SHRI BHIMRAJ D. JAIN 10 &' &' &' &' 8$ 8$ 8$ 8$ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ 79 & &: , 4. THE CONCERNED CIT / 79 & &: 5. DR B BENCH, ITAT, MUMBAI / ;/ + CH CHCH CH <= , & . . . )7 6. GUARD FILE/ /< > //TRUE COPY// &' / BY ORDER, ? / 2 DY./ASST. REGISTRAR & + % , )7 /ITAT, MUMBAI