Poonam Pujari v. ….The Asst. Registrar Of Income Tax Appellate Tribunal, Cuttack And Others

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 25636 of 2024 Poonam Pujari ….Petitioner -versus- ….The Asst. Registrar of Income Tax Appellate Tribunal, Cuttack and others Opposite Parties Advocates appear in the case: For Petitioner: Mr. Bijay Panda, Advocate For Opposite Parties: Mr. Avinash Kedia, Junior Standing Counsel CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T -------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 5[th] November, 2024 -------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Panda, learned advocate appears on behalf of petitioner-assessee and submits, there be interference with order dated 27[th]September, 2024 made by the Income Tax Appellate Tribunal in M.A. no.16/CTK/2024 in ITA no.272/CTK/2019, pertaining to assessment year 2014-15. He submits, the M.A. was an application for recalling order dated 12[th] August, 2024, disposing of the appeal ex-parte against Page 1 of 5 his client. By the application sufficient cause was shown but the Tribunal arbitrarily dismissed the same. He submits, the Tribunal went into aspect of rectification and missed petitioner’s contention of recall for purpose of restoration of the appeal. 2.He relies on view taken by coordinate Bench on judgment dated 18[th] March, 2020 in W.P.(C) no.2487 of 2019 (Rabindra Kumar Mohanty v. The Registrar, ITAT, Cuttack. He points out, rule 24 in Income Tax (Appellate Tribunal) Rules, 1963 stands reproduced in paragraph-5. The rule is reproduced below. “Rule 24 of the Income Tax (Appellate Tribunal) -Rules, 1963Provides that “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: Provided that where 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.” (emphasis supplied) He submits, clear view taken in paragraph 12 of the judgment was, the Tribunal cannot dismiss an appeal for want of prosecution and it ought to have decided the appeal on merits even if appellant or the counsel was not present, when the appeal was taken up for hearing. He seeks interference. 3.Mr. Kedia, learned advocate, Junior Standing Counsel appears on behalf of revenue and demonstrates from impugned order, as well as earlier disposal of appeal order dated 12[th] August, 2024 that as many as 21 adjournments were obtained by petitioner. Ultimately date fixed in consultation with, inter alia, petitioner was also not adhered to. In the circumstances, the Tribunal committed no error in not being satisfied with cause for absence shown by petitioner. The writ petition is liable to and should be dismissed. Mr. Panda in reply reiterates, the Tribunal lost the thread in directing its mind toward rectification. Petitioner had invoked rule 24 and had shown sufficient cause. His client seeking opportunity to prosecute the appeal is before the writ Court. 4.We have seen the application made by petitioner. It says it was made under section 254(2) in Income Tax Act, 1961. The sub-section deals with rectification. The Tribunal, therefore, cannot be faulted for referring to aspect of rectification in impugned order. gave reason on not being satisfied with the cause shown for not appearing on the date fixed for hearing of the appeal. We reproduce below a sentence from the order, which constitutes the reason. “ xx xx xx The appeal is disposed of after more 4.We have seen the application made by petitioner. It says it was made under section 254(2) in Income Tax Act, 1961. The sub-section deals with rectification. The Tribunal, therefore, cannot be faulted for referring to aspect of rectification in impugned order. gave reason on not being satisfied with the cause shown for not appearing on the date fixed for hearing of the appeal. We reproduce below a sentence from the order, which constitutes the reason. “ xx xx xx The appeal is disposed of after more than five years and it has been specifically recorded in the order of the Tribunal that what has not been collected in the last 5 years would obviously not be possible in 20 days and again the adjournment sought is nothing but to challenge to the functioning of the Bench. xx xx xx” It appears the Tribunal considered the appeal disposal order, wherein it had been specifically recorded that what had not been collected in the last five years would obviously not be possible (to be collected) in 20 days and, therefore, the adjournment sought was nothing but challenge to functioning of the Bench. It was said to be not an error made by the Tribunal. This reason though is on the question of rectification, the contention on adjournment was also thereby dealt with. However, the Tribunal failed to see that it was to obtain satisfaction from the application, on causes shown for not appearing on the date of hearing. Cause alleged was indisposition of the learned advocate. 6.We find from the application, paragraph-9 that apart from annexing therewith medical certificate, also annexed were additional grounds of appeal etc., filed therewith for kind consideration of the Bench. The miscellaneous application therefore disclosed documents, which the disposal order had said as could not be disclosed in twenty days. We are persuaded to interfere with impugned order. We may add that Rabindra Kumar Mohanty (supra) is of no assistance to petitioner because view taken was on requirement of the Tribunal to deal with an appeal on merits where appellant was absent but respondent had appeared and urged its contention(s). 7.Impugned order is set aside and quashed. The miscellaneous application is allowed and the appeal restored. Petitioner will communicate certified copy of this order to the Tribunal by 12[th]November, 2024 and obtain date of hearing of the appeal per convenience of the Tribunal. Omission of petitioner to be represented on date fixed for hearing of the appeal will automatically restore impugned order. 8.The writ petition is disposed of. (Arindam Sinha) Judge Signature Not Verified (M.S. Sahoo) Judge Digitally SignedSigned by: SISIR KUMAR SETHIReason: AuthenticationLocation: ORISSA HIGH COURTSks Date: 05-Nov-2024 18:21:39 W.P.(C) no. 25636 of 2024 Page 5 of 5