High Court Of Madras
Ravi Prakash Khemka vs. Income Tax Appellate Tribunal & Anr.
Section 254(1), ITAT Rules 24
K. Mohan Ram, J.
Writ Petn. No. 11507 of 2006
24th April, 2006
Counsel Appeared
R. Sivaraman, for the Petitioners : Narayanasamy, for the Respondents
ORDER
K. Mohan Ram, J. :
Mr. Narayanasamy, takes notice for the respondents. By consent of counsel on either side, the main writ petitions are taken up for final disposal.
The above writ petitions have been filed for the issue of writ of certiorarified mandamus calling for the records of the first respondent in MP Nos. 263, 261, 262/Mad/2005 dt. 25th Nov., 2005 and quash the orders passed by the first respondent and consequently direct the first respondent to hear the appeals in ITA Nos. 328, 323, 324/Mad/2000, by giving opportunity to the petitioners.
The short facts that are necessary for the final disposal of the writ petitions are as follows : The appeals filed by the petitioners/appellants in the above writ petitions in ITA Nos. 328, 323, 324/Mad/2000 were posted for final hearing before the first respondent Tribunal on 21st June, 2005. The Authorised Representative/ advocate of the petitioners by letter dt. 20th June, 2005, addressed to the Dy. Registrar, Tribunal, Chennai, sought for adjournment on the ground that he had to attend a family function in his native place Kumbakonam and hence he was not in a position to attend the hearing on 21st June, 2005. But the first respondent Tribunal decided the appeals on merits. Thereafter, the petitioners filed MP Nos. 263, 261, 262/Mad/2005, under r. 24 of the ITAT Rules, 1963 to set aside the ex parte orders passed by the Tribunal and to restore the appeals and hear the same and dispose of them on merits, after giving opportunity to the appellants. But the said petitions were dismissed by the first respondent Tribunal by its order dt. 25th Nov., 2005, which order is impugned in the above three writ petitions.
3. The learned counsel for the petitioners brought to the notice of this Court, the proviso to r. 24 of the ITAT Rules, 1963, which reads as follows: “Where on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an Authorised Representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent; Proviso : That when an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal 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.” Relying upon the said proviso to r. 24, the learned counsel submitted that even though the Tribunal may dispose of the appeal on merits ex parte, when the appellants appear afterward and satisfy the Tribunal that there was sufficient cause for their non-appearance when the appeal was called for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal. According to the learned counsel for the petitioner, the Authorised Representative had, in time, sent the letter seeking for adjournment of the hearing fixed on 21st June, 2005. But the first respondent Tribunal without considering as to whether there was sufficient cause for the nonappearance of the appellants or their Authorised Representative, has rejected the petitions filed for setting aside the ex parte orders.
Mr. Narayanasamy, learned counsel for the IT Department fairly submits that the Tribunal ought to have considered the application in the light of the proviso contained in r. 24 of the ITAT Rules, 1963. But however submits that since the order of the Tribunal is on merits, and the petitioners have no case on merits, this Court may not interfere with the order passed by the Tribunal. A reading of r. 24 of the ITAT Rules, 1963 clearly shows that even though the ex parte order, on merits, could be passed by the Tribunal in the absence of the appellants, when an application is filed invoking the proviso to r. 24 of the ITAT Rules, 1963, setting out sufficient cause for the nonappearance of the appellants or their Authorised Representative, the Tribunal shall, on a consideration of the cause shown, set aside the ex parte order, restoring the appeal and hear it on merits.
In my considered view, the Tribunal has not applied its judicial mind to the facts of this case. Admittedly, the Authorised Representative of the appellants has submitted a letter seeking for adjournment, in time. When the proviso to r. 24 only speaks of reasonable cause being shown, the Tribunal should have considered the reasonable cause, instead of considering the merits of the case. What the petitioners want is only an opportunity to put forth their case, on merits and by setting aside the ex parte order, no harm is going to be caused to the respondents. In my considered view, sufficient cause has been shown by the appellants for the non-appearance before the Tribunal, on the date of hearing. Considering the same, the Tribunal ought to have allowed the petitions. Therefore, the impugned order of the Tribunal is set aside and the Tribunal shall restore the appeals ITA Nos. 328, 323, 324/Mad/2000 and fix a fresh date of hearing for the disposal of the appeals and on receipt of the hearing notice, the petitioners shall appear before the Tribunal on the date fixed for the hearing of the appeals, either in person or through their representative, without fail, and co-operate with the Tribunal in disposal of the appeals, without seeking further adjournment. With the above direction, the writ petitions are allowed. No costs. Consequently, WPMP Nos. 13103 to 13105 of 2006 are closed.
[Citation : 288 ITR 362]
