Dr E.Yeshoda(Late) by L/hr Dr.A.V.Sreekumar, Alappuzha V. ACIT, Calicut

MA 24/COCH/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5241 (ITAT-COCHIN)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 17-09-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 16-04-2010
• Court: TRIBUNAL
• Assessee Lawyers: DALE P KURIAN DR BABU JOSEPH
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM M.P. NOS. 24,25 & 26/COCH/2010 (ASG. OUT OF I.T.A. NOS. 690,691 & 692/COCH/2007) ASSESSMENT YEARS : 1999-2000, 2000-01 & 2004-05 DR. E.YESHODA (LATE) REP. BY L/HR. DR.A.V.SREEKUMAR, VELLUR, PAYYANNUR, KANNUR. [PAN: AAYPK0761C] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, CALICUT. (ASSESSEE-APPLICANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI DALE P.KURIAN, ADVOCATE REVENUE BY DR. BABU JOSEPH, SR. DR O R D E R PER SANJAY ARORA, AM: THESE ARE A SET OF THREE MISCELLANEOUS PETITIONS B Y THE ASSESSEE, ARISING OUT OF THE ORDER BY THE TRIBUNAL IN ITS CASE, DISPOSING OFF TH E REVENUE APPEALS AND ASSESSEES CROSS OBJECTIONS FOR THE ASSESSMENT YEARS (A.Y.S) 1999-20 00, 2000-01 AND 2004-05. 2. THE CAPTIONED APPEALS BY THE REVENUE WERE HEARD WITHOUT HEARING THE ASSESSEE- RESPONDENT AS NONE HAD APPEARED FOR AND ON HIS BEHA LF WHEN THE SAME WERE CALLED OUT FOR HEARING ON 11.12.2009, TO WHICH DATE THE HEARING ST OOD ADJOURNED AT THE REQUEST OF THE ASSESSEES COUNSEL, THE LD. AR, IN OPEN COURT ON 12 .11.2009. 3. THE ASSESSEE, VIDE ITS INSTANT APPLICATIONS, CON TENDS THAT THE NON-REPRESENTATION ON THE DATE OF HEARING BY ITS AUTHORIZED REPRESENTATIV E OCCURRED ON ACCOUNT OF A MISTAKE IN NOTING DOWN THE ADJOURNED DATE (OF HEARING) FROM TH E CAUSE LIST AS PUT UP AT THE NOTICE BOARD OF THE TRIBUNAL BY THE CLERK OF HIS OFFICE, I .E., THE LD. AR BEFORE US. AS SUCH, THERE WAS SUFFICIENT CAUSE FOR NON-REPRESENTATION AFORESA ID, WHICH MAY BE CONDONED BY RESTORING THE APPEALS FOR HEARING. M.P. NOS. 24, 25 & 26/COCH./2010 2 4.1 BEFORE US, THE LD. AR PLEADED HIS CASE BY ADMIT TING OF THE MISTAKE BY HIS CLERK SHRI DILEEP C.D., AN AFFIDAVIT BY WHOM TO THIS EFFE CT STANDS FILED ALONG WITH. IT WAS BROUGHT TO HIS NOTICE BY THE BENCH, ON A PERUSAL OF THE ORDER SHEET, THAT THE CASE STOOD ADJOURNED AT HIS REQUEST ONLY, ANNOUNCING THE DATE IN THE OPEN COURT AND TO WHICH HE REPLIED BY STATING THAT AN OMISSION COULD OCCUR IN ANY CASE. 4.2 THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT T HE TRIBUNAL HAS CONSIDERED AND PASSED A DETAILED ORDER ON MERITS, TAKING ALL THE R ELEVANT MATERIALS INTO ACCOUNT AND, THEREFORE, ITS RECALL BY IT WOULD AMOUNT TO A REVIE W. SECONDLY, NO PROPER REASON FOR THE NON-REPRESENTATION STANDS ADVANCED BY THE ASSESSEE. 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 (`THE RUL ES HEREINAFTER), PROVIDES FOR THE SITUATION SIMILAR TO THE PRESENT ONE. IT READS AS UNDER:- HEARING OF APPEAL EX PARTE FOR DEFAULT BY THE APPEL LANT. 24. WHERE, ON THE DAY FIXED FOR HEARING OR ON A NY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT APPEAR IN PERS ON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEA RING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT. PROVIDED THAT WHERE AN APPEAL HAS BEEN DI SPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIB UNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORING THE APPEAL. FIRSTLY, THEREFORE, THE RULE CONTEMPLATES R ESTORATION AND REHEARING OF AN APPEAL ONLY AT THE INSTANCE OF THE APPELLANT, WHICH (THE REVENU E) WAS DULY HEARD IN THE INSTANT CASE. THE APPEALS, THEREFORE, CANNOT BE SAID TO HAVE BEEN HEARD EX PARTE , AND THE SAID RULE IS NOT APPLICABLE THERETO. NO DOUBT, THE ASSESSEE HAD PREFERRED CROSS OBJECTIONS QUA THE REVENUES APPEALS, YET IT COULD NOT BE CONSIDERED A S AN APPELLANT AS ITS CROSS OBJECTIONS ARE ONLY SUPPORTIVE IN NATURE; IT HAVING BEEN SUCCE SSFUL IN FIRST APPEAL, SO THAT THE ASSESSEE COULD EVEN OTHERWISE ASSUME THE PLEAS OR THE GROUND S OF OBJECTION IT SEEKS TO HIGHLIGHT M.P. NOS. 24, 25 & 26/COCH./2010 3 PER ITS COS. IN FACT, THE RESTORATION PRAYED FOR IS ALSO ONLY IN RESPECT OF THE REVENUES APPEALS . FURTHER ON, ON THE MERITS OF THE ISSUE, I.E., ASS UMING THE ASSESSEES CASE TO BE COVERED BY THE SAID RULE, AS WOULD BE APPARENT FROM THE PLAIN READING THEREOF, THE SAME ITSELF PROVIDES FOR THE RESTORING THE APPEAL BY SET TING ASIDE THE EX PARTE ORDER IN A CASE WHERE THE TRIBUNAL IS SATISFIED AS TO THE EXISTENCE OF SUFFICIENT CAUSE FOR NON-APPEARANCE. THE SAME, THUS, ONLY MANDATES WHAT THE NATURAL PRIN CIPLE OF JUSTICE WOULD OTHERWISE SUGGEST OR DICTATE. IN THE INSTANT CASE, THE APPEA LS ARE BEING CONTINUOUSLY POSTED SINCE 3/9/2008, AND HEARING BEING DEFERRED FOR ONE REASON OR THE OTHER. THE APPEALS STOOD ADJOURNED ON THE LAST DATE WHICH STOOD FIXED FOR HE ARING, I.E., PRIOR TO THE DATE OF HEARING, AT THE REQUEST OF THE LD. AR HIMSELF, WITH THE DATE OF HEARING BEING ANNOUNCED IN THE OPEN COURT. THE LD. AR HAS PLACED HIS INITIALS ALONGSID E THE ORDER SHEET ENTRY DATED 12/11/2009 IN A TOKEN OF HIS HAVING NOTED THE SAID DATE, I.E., 11/12/2009. THE SAME ALSO SIGNIFIES IT BEING ACCEPTABLE TO HIM. UNDER THE CIRCUMSTANCE, IT IS DIFFICULT TO COMPREH END AS TO FOR WHAT PURPOSE HIS CLERK, WHO BY HIS OWN ADMISSION WAS NEW TO THE JOB, STOOD SENT TO THE TRIBUNAL IN THE FIRST PLACE AND, SECONDLY, ON 5.12.2009, A SATURDAY, WHER EAT THE OFFICE OF THE TRIBUNAL IS CLOSED, FOR NOTING DOWN THE `DATE FROM THE CAUSE LIST. AD VOCATES/REPRESENTATIVES GENERALLY MAINTAIN A DIARY, WHICH THEY CARRY TO THE COURT, AN D NOTE DOWN THE `DATES THEREAT ITSELF; RATHER, COMMUNICATING THE SAME ALSO TO THEIR CLIENT S. FURTHER, IT IS AVERRED THAT HE FAILED TO OBSERVE THE DATE OF POSTING OF THE APPEALS AS TH E SAME WAS ON A FRIDAY, ON WHICH THE APPEALS ARE NOT GENERALLY POSTED FOR HEARING. WE, AS AFORE-MENTIONED, FIND THE SAME AS WITHOUT SUBSTANCE AS THE RELEVANT DATE WAS COMMUNIC ATED TO AND DULY TAKEN NOTE OF BY THE LD. AR HIMSELF AND, FURTHER, STOOD ACCEPTED BY HIM. THE TRIBUNAL GENERALLY ADOPTS A LIBERAL VIEW IN SUCH MATTERS, AND ONLY IN THE INTEREST OF JUSTICE AND FAIRNESS OF PROCEDURE. AT THE SAME TIME, HOWEVER, IT CANNOT BE STATED AS A RULE, SO THAT WHENEVER A LITIGANT COMES WITH AN EXCUSE, THE SAME IS TO BE BLINDLY ACCEPTED. THE PROCESS OF LAW CANNOT BE ALL OWED TO BE ABUSED, AND REDUCED TO A FARCE, WHICH WE CONSIDER IT WOULD AMOUNT TO IF THE ASSESSEES PRAYER IS ACCEPTED IN THE INSTANT CASE; ITS CASE HAVING BEEN DECIDED ON MERIT S, AND NO REASONABLE CAUSE FOR NON- APPEARANCE OF THE ASSESSEE-RESPONDENTS COUNSEL HAV ING BEEN ADVANCED. AS EXPLAINED BY THE APEX COURT IN THE CASE OF CIT V. BHATTACHARGEE B.N. (!979) 118 ITR 461 (SC), M.P. NOS. 24, 25 & 26/COCH./2010 4 PREFERRING AN APPEAL MEANS MORE THAN MERELY FILING THE APPEAL MEMO; IT MEANS EFFECTIVELY PURSUING IT. ALSO, THOUGH THE PRESENT PROCEEDINGS ARE IN RESPECT OF RECTIFICATION PROCEEDINGS, THE SCOPE OF WHICH IS SE VERELY LIMITED, IT WOULD NOT BE OUT OF PLACE TO MENTION THAT NO PREJUDICE CAUSED, IF ANY, HAS BEEN POINTED OUT BY THE ASSESSEE 6. IN THE RESULT, ALL THE THREE MISCELLANEOUS PETITIONS BY THE ASSESSEE ARE DISMISSED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: NOVEMBER 16, 2010 GJ COPY TO: 1. DR. E.YESHODA (LATE), REP BY L/HR. DR. A.V.SREEK UMAR, VELLUR, PAYYANNUR, KANNUR. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRA L CIRCLE, CALICUT. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSIST ANT REGISTRAR)