M/S Mehru Electrical & Engg.(P) Limited v. The Commissioner Of Income Tax, Alwar & Ors

(1) DB INCOME TAX APPEAL 228/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPURJUDGMENT D.B. INCOME TAX APPEAL NO.228/2010 M/s MEHRU ELECTRICAL & ENGG.(P) LIMITEDVs. THE COMMISSIONER OF INCOME TAX, ALWAR & ORS. DATE:27.04.2012 '-HONBLE MR. JUSTICE NARENDRA KUMAR JAINIHON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. R.K. Agarwal, Senior Counsel assisted byMr. Naresh Gupta, for the appellant.Ms. Parinitoo Jain, for the respondents. **** At the request of the parties, arguments were heard and the appeal is beingdisposed off finally. 2.Assessee/appellant has preferred thisappeal under Section 260A of the Income TaxAct, 1961 against the order dated 26.02.2010passed by the Income Tax Appellate Tribunal,Jaipur Bench 'B', Jaipur(hereinafter referredto as 'the Tribunal'), whereby the Tribunalallowed the appeal filed by the Revenueagainst the order dated 30.12.2008 passed bythe Commissioner of Income-Tax(Appeals),Alwar. 3.Submission of the learned counsel forappellant is that appeal before the Tribunal (2) DB INCOME TAX APPEAL 228/2010 was fixed on 09.02.2010. Counsel for theassessee had moved an application foradjournment of the case, in advance, on08.02.2010 on the ground that he is going toMumbai for some urgent work. The case wastaken up on 09.02.2010. Application foradjournment, filed on behalf of Counsel forassessee, was rejected and the case was heardex-parte and appeal of the Revenue wasallowed. He received a copy of order dated26.02.2010 on 26.03.2010 and preferred theappeal before this Court. He submitted thatfrom para 2 of the impugned order, it isclear that adjournment application wasrejected only on the ground that a lastopportunity was granted to him to argue theappeal. He submitted that Counsel forassessee had to go outside Jaipur due to someurgent work, but the said request was notconsidered and by a non-speaking order,application was rejected. He also submittedthat even if a last opportunity was grantedon last date, it does not mean that onsufficient ground the case can not beadjourned again. Since, it is matter wheretax effect is more than Rs. 46 lacs,therefore, it was incumbent on the part ofthe Tribunal to adjourn the case. He,therefore, submitted that order of the (3) DB INCOME TAX APPEAL 228/2010 Tribunal may be set aside and the case may beremitted back to the Tribunal for decision onmerits, afresh. 4.Learned counsel for the Revenuedefended the impugned order of the Tribunaland submitted that Counsel for assessee wasavoiding the hearing and a last opportunitywas granted to him, but again he sent anapplication for adjournment of the case,therefore, the Tribunal rejected theapplication and heard the Counsel for theRevenue and rightly decided the appeal.Therefore, no interference in the order ofthe Tribunal is called for by this Court. 5.We have considered the submissions ofthe learned counsel for the parties andexamined the impugned order and original fileof the Tribunal, which was summoned by us. 6.The substantial question of law, which arises for our consideration is“Whether, if a case is adjourned by giving alast opportunity to the Counsel for assessee,the same can be adjourned or not, again onthe date fixed, if sufficient or reasonablecause exists on that day?” (4) DB INCOME TAX APPEAL 228/2010 5.We have considered the submissions ofthe learned counsel for the parties andexamined the impugned order and original fileof the Tribunal, which was summoned by us. 6.The substantial question of law, which arises for our consideration is“Whether, if a case is adjourned by giving alast opportunity to the Counsel for assessee,the same can be adjourned or not, again onthe date fixed, if sufficient or reasonablecause exists on that day?” (4) DB INCOME TAX APPEAL 228/2010 7.Undisputed facts of the case are thatappeal before the Tribunal was fixed on11.01.2010 and at the request of theauthorized representative, hearing of thecase was adjourned to 09.02.2010, giving hima last opportunity. Counsel for assesseemoved an application for adjournment of thecase on 08.02.2010 as he was going to Mumbaifor some urgent work. The appeal was taken upby the Tribunal on 09.02.2010 and theapplication was rejected. Order-sheet dated09.02.2010 of the Tribunal shows that it is arubber stamped order-sheet, which has beenfilled in. It does not show any reason forrejecting the application. It also does notdisclose as to whether appeal has been heardand judgment/order has been reserved or nextdate is fixed in the case. Impugned order hasbeen passed on 26.02.2010, but in theoriginal file of the Tribunal, it ismentioned that date of pronouncement is12.03.2010. In another rubber stamped order-sheet, the date 26.02.2010 is filled inblank, which is not legible. However, frompara 2 of the impugned order dated26.02.2010, it reveals that a lastopportunity was granted to the learnedauthorized representative of the assessee forarguments in the appeal and the case was (5) DB INCOME TAX APPEAL 228/2010 fixed for hearing on 09.02.2010. Theadjournment application dated 08.02.2010 wasrejected because it was clearly mentioned onthe last hearing that both the parties arebeing given the last opportunity. 8.From the proceedings of the Tribunaldated 11.01.2010, it is clear that lastopportunity was given and the case wasadjourned for 09.02.2010. Application foradjournment was filed on 08.02.2010, whichwas put up for consideration before theTribunal on 09.02.2010. From the application,it appears that Counsel for assessee had togo to Mumbai due to some urgent work.Application was available on record. No onewas present on behalf of assessee. LearnedTribunal, in absence of Counsel for assessee,rejectedtheadjournmentapplication.Ordinarily, it is not incumbent on the partof the Tribunal to adjourn the case againwhen a last opportunity had already beengranted to the Counsel for assessee, however,there may be number of circumstances whereadjournment becomes necessary, in theinterest of justice. If Counsel for assesseehad to go for some urgent work to Mumbai andan application for adjournment was moved inadvance, then in the interest of justice, a (6) DB INCOME TAX APPEAL 228/2010 short adjournment should have been granted.If number of opportunities had already beenafforded to the Counsel for assessee, thenadjournment could have been granted, onpayment of cost. The Tribunal has notassigned any reason as to whether reasonmentioned in the application for adjournment,constituted sufficient cause for adjournmentor not? Even if, a last opportunity isgranted and case is fixed for hearing andsufficient cause is shown on the date fixedfor hearing, then the case can be adjournedand it should be adjourned, in the interestof justice. (6) DB INCOME TAX APPEAL 228/2010 short adjournment should have been granted.If number of opportunities had already beenafforded to the Counsel for assessee, thenadjournment could have been granted, onpayment of cost. The Tribunal has notassigned any reason as to whether reasonmentioned in the application for adjournment,constituted sufficient cause for adjournmentor not? Even if, a last opportunity isgranted and case is fixed for hearing andsufficient cause is shown on the date fixedfor hearing, then the case can be adjournedand it should be adjourned, in the interestof justice. 9.In these circumstances, we are of theview that the Tribunal committed anillegality in rejecting the application foradjournment and in deciding the appeal, ex-parte, without hearing the learned counselfor assessee, in the facts and circumstancesof the present case and order of the Tribunaldeserves to be set-aside on this ground aloneand substantial question of law, formulatedabove, is liable to be answered and is herebyanswered in favour of the assessee. 10.Consequently, the appeal is allowed.Impugned order of the Tribunal dated (7) DB INCOME TAX APPEAL 228/2010 26.02.2010 is set-aside and the case isremitted back to the Tribunal for decision onmerits, afresh. However, cost of Rs.21,000/-(Rs. Twenty one thousand) is imposed on theassessee. If the amount of cost is depositedin the Department within a period of fourweeks and receipt thereof is furnished in theTribunal, then the Tribunal will decide thematter afresh on merits, after hearing boththe parties, otherwise this appeal will bedeemed to have been dismissed and no furtheropportunity will be granted to the assessee. 11.Parties are directed to appear beforethe Income Tax Appellate Tribunal, JaipurBench 'B', Jaipur on 28.05.2012. No freshnotice in this regard will be issued to theparties by the Tribunal. 12.Registry is directed to send therecord of the Tribunal back, immediately. (MAHESH BHAGWATI),J. (NARENDRA KUMAR JAIN-I),J. /KKC/ Certificate: All corrections made in the judgment/order have been incorporated in thejudgment/order being emailed.judgment/order being emailed. KAMLESH KUMARP.A.