Commissioner Of Income Tax, Ludhiana-Ii v. M/S Avon Cycles Ltd., G.t. Road, Dhandari Kalan, Ludhiana

I.T.A. No. 84 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH I.T.A. No. 84 of 2008Date of decision: 14.8.2008 Commissioner of Income Tax, Ludhiana-II. Vs. ..Appellant. M/s Avon Cycles Ltd., G.T. Road, Dhandari Kalan, Ludhiana. ..Respondent. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Rajesh Sethi, Advocate for the appellant. Mr. Akshay Bhan & Mr. Aman Bansal, Advocates for the respondent. .. Rajesh Bindal J. The Revenue has filed the present appeal under Section 260Aof the Income-tax Act, 1961 (for short, `the Act') raising the followingsubstantial question of law, arising out of the order passed by the Income-tax Appellate Tribunal, Chandigarh Bench `B', Chandigarh (for short, `theTribunal') in I.T.A. No. 211/Chandi/2005 dated 16.4.2007 for theassessment year 1999-2000: “Whether on the facts and in the circumstances of the case, theTribunal was right in law to dismiss the appeal of departmentfor non prosecution instead of deciding the same on meritsirrespective of the fact same issue stands decided in favour ofthe department by the jurisdictional High Court?” Learned counsel for the Revenue submitted that on the datefixed before the Tribunal, departmental representative who had beenallotted the case could not appear for certain unavoidable reasons and otherdepartmental representative who was present requested for an adjournment,which was rejected by the Tribunal and the appeal was dismissed in default.He further submitted that even an application filed by the assessee for I.T.A. No. 84 of 2008 [2] adjournment was dismissed, though as far as the department is concerned,the Tribunal recorded that no application for adjournment had been filed.He further submitted that the issue raised by the Revenue in appeal beforethe Tribunal is an important question which has already been decided infavour of the Revenue by this Court and in case, the appeal is not heard onmerits by the Tribunal, the same will result in miscarriage of justice. On the other hand, learned counsel for the respondentsubmitted that it was for the department to pursue the appeal filed by it andin case of negligence and non-appearance at the time when the case wascalled for hearing, the Tribunal had no choice but to dismiss the same indefault. Having heard learned counsel for the parties and withoutopining on the merits of the controversy involved therein, in our consideredview, it would be in the fitness of things and interest of justice that theappeal filed by the Revenue before the Tribunal is heard and decided onmerits. A perusal of the impugned order shows that on the date fixed nonewas present for the parties before the Tribunal, though it is recorded thatthere was no written request on behalf of the Revenue before the Tribunal,whereas a similar written application filed by the assessee for adjournmentwas rejected. It is also found recorded in the order that other departmentalrepresentative present in the Court requested for an adjournment on theground that the case had been allotted to another departmentalrepresentative. However, the same was rejected. Considering the material on record, we find that the approachof the Tribunal, in the case in hand, was not justice-oriented. Once both theparties were requesting for adjournment and that too in the absence of theirrespective counsel, the Tribunal could very well consider their request orproceed to decide the case on merits instead of dismissing the same indefault. The technicalities should take a back seat as far as determination ofrights of the parties is concerned. The parties should be affordedopportunity to address arguments on merits instead of dismissing the case indefault. Considering the material on record, we find that the approachof the Tribunal, in the case in hand, was not justice-oriented. Once both theparties were requesting for adjournment and that too in the absence of theirrespective counsel, the Tribunal could very well consider their request orproceed to decide the case on merits instead of dismissing the same indefault. The technicalities should take a back seat as far as determination ofrights of the parties is concerned. The parties should be affordedopportunity to address arguments on merits instead of dismissing the case indefault. I.T.A. No. 84 of 2008 [3] For the reasons stated above, the impugned order passed by theTribunal is set aside. The parties are directed to appear before the Tribunalon 20.10.2008 for further proceedings. ( Rajesh Bindal ) Judge 14.8.2008mk (Hemant Gupta) Judge