High Court Of Calcutta
Sourav Jhunjhunwalla vs. CIT
Section 254(1), ITAT RULE 24
D.K. Seth & R.N. Sinha, JJ.
IT Appeal No. 349 of 2004
8th July, 2004
Counsel Appeared
J.P. Khaitan & A.K. Dey, for the Appellant : D. Som & Md. Nizamuddin, for the Respondent
JUDGMENT
D.K. seth, J. :
At the admission stage of this appeal, it appeared to us that this can be disposed of on a very limited ground. Therefore, we had granted liberty to Mr. Khaitan to serve notice. Accordingly, notices were served. Mr. Som appears for the respondents. We have heard Mr. Khaitan on the question of admission of appeal. While addressing the Court, Mr. Khaitan had virtually addressed on the merits of the appeal itself. Mr. Som, on the other hand, was requested to address the Court on the question of admission. Mr. Som had advanced his arguments on the merits of the appeal itself while opposing the admission. Normally right of hearing at the stage of admission is not allowed. But having regard to the facts and circumstances of the case we thought it fit that we should dispose of the appeal at the admission stage itself. Therefore, we prefer to hear Mr. Som at this stage. The appeal is, therefore, treated as on the day’s list for hearing by consent of the parties. The learned Tribunal by its order dt. 30th Jan., 2004, disposed of ITA No. 195/Kol/2002 ex parte. Subsequently, an application was made by the assessee for rehearing on the ground that the assessee was prevented for sufficient reason from appearing at the time when the appeal was called on for hearing. This was rejected on the ground that on three earlier occasions the hearing was adjourned. Mr. Som pointed out that the appeal was preferred by the assessee himself. He did not show diligence and had obtained adjournments on three occasions. It seems that there was no bona fide attempt on the part of the assessee. He could have asked for adjournment on the date when the matter was called on through his representative who represented the assessee in the application itself or through someone else. His personal confinement to bed would not prevent him from making arrangement through any of his representatives. He did not take any steps on the date when the matter was called on. He further pointed out that the appeal has been disposed of on the merits. The learned Tribunal had dealt with all the points at the time of deciding the case. On the merits, it does not appear anything from which it can be said that the appellant had any chance of success.
We have heard learned counsel for the respective parties. We are not supposed to enter into the merits of the case. Whether the ground was bad or not is the only question, which was to be gone into for the purpose of giving a rehearing of the appeal to the appellant. Rule 24 of the Appellate Tribunal Rules, 1963, provides that in case the assessee fails to appear in person or through an Authorised Representative when the appeal is called on for hearing, the learned Tribunal may dispose of the appeal on the merits after hearing the respondent. This rule incorporates a proviso. It provides that where an appeal has been disposed of in terms of r. 24 if the assessee appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing in such case the Tribunal shall make an order setting aside the ex parte order restoring the appeal. The expression used in the rule and the proviso specifically stresses on the phrase “when the appeal is called on for hearing”. A phrase in the statute has to be given its due meaning. It cannot be overlooked. The golden principle of interpretation follows the simple meaning of the expression used. The ex parte hearing could be done if the assessee fails to appear when the matter is called on for hearing. Similarly, it can be restored if the assessee satisfies the Tribunal that he was prevented from appearing due to sufficient cause when the appeal was called on for hearing. In this case the assessee had explained the reason that he was bedridden on account of sufferance from jaundice on the date when the matter was taken up for hearing and, therefore, when the matter was called on for hearing he was unable to appear. Whether he had obtained adjournment earlier or the Tribunal had shown latitude in granting successive adjournments would be immaterial for the purpose of considering an application made under the proviso to r. 24 for the purpose of restoring an appeal. The learned Tribunal has to examine as to whether there were sufficient reasons preventing the assessee from appearing when the appeal was called on for hearing. If there are sufficient reasons and the Tribunal is satisfied with the reason, there is no alternative but to restore the appeal.
Having regard to the explanation given we find that sufferance from jaundice on the date when the appeal was taken up is a sufficient ground to prevent a person from appearing when the matter is called on for hearing. This sufferance from jaundice is supported by a medical certificate. Nor the learned Tribunal had disbelieved the same neither it had disbelieved the fact that the assessee was suffering from jaundice. Thus, we are of the opinion that the assessee was able to make out sufficient cause satisfactory to the Tribunal to explain his non-appearance. In the circumstances we set aside the order dt. 5th April, 2004, passed in MA No. 10/Kol/2004 arising out of ITA No. 195/Kol/2002. We allow the application for recalling the ex parte order and restore the appeal. The learned Tribunal shall rehear the appeal on its merits after giving opportunity to the assessee who will not take any further adjournment. Let it be noted that we have not entered into the merits of the case. Let the Tribunal decide the appeal on its own merits and in accordance with law and according to its discretion without being influenced by any observation made in this order. R.N. sinha, J. : I agree.
[Citation : 273 ITR 225]
