Wp/14104/2002 Of Hamza Khan v. Assistant Commissioner Of Income Tax

HON’BLE SRI JUSTICE G. CHANDRAIAHANDHON’BLE SRI JUSTICE CHALLA KODANDA RAM WRIT PETITION Nos.14083, 14104, 14109, 14111, 14112, & 14123 OF 2002 COMMON ORDER:- (per Hon’ble Sri Justice Challa Kodanda Ram) All these writ petitions are filed questioning the order dated26.03.2002, passed by the Income Tax Appellate Tribunal, HyderabadBench ‘A’, Hyderabad, in M.P.Nos.10 to 15/Hyd/2002 in I.T.A.Nos.1265 to1267/H/91, wherein and whereby miscellaneous petitions filed by theassessee under Rule 24 of the Income Tax Appellate Tribunal Rules (forshort, ‘the Rules’) praying the Tribunal to recall the order dated 30.10.2001,in I.T.A Nos.1265 to 1267/H/91 filed by the assessee, have been dismissed,were rejected. 2. The main grievance of the sole petitioner in all the writ petitions is thathe had filed appeals in I.T.A.Nos.1265 to 1267/H/91 before the Income TaxAppellate Tribunal, Hyderabad Bench ‘A’, Hyderabad against the orders ofthe Commissioner of Income-tax (Appeals)-IV, Hyderabad and the saidappeals were posted for hearing on 15.10.2001, on that day, the counsel forthe appellant sought for adjournment for two days on the ground of hisleaving for Visakhapatnam to fulfil some social obligations. However, theTribunal refused to adjourn the appeals and directed the petitioner to filewritten submissions within a week. The counsel for the petitioner filed thewritten submissions on 23.10.2001. The Tribunal disposed of the saidappeals by its order dated 30.10.2001, confirming the orders of theCommissioner of Income-tax (Appeals), without considering the writtensubmissions filed by the petitioner. Therefore, the petitioner filed theMiscellaneous Petition Nos. 10 to 15/Hyd/2002 in I.T.A.Nos.1265 to1267/H/91, under Rule 24 of the Rules before the Tribunal, praying to recallthe order dated 30.10.2001, passed by it in the appeals, but the saidmiscellaneous petitions were rejected by the Tribunal by its order dated26.03.2002. Hence, the present writ petitions. 3. Sri A.V. Siva Karthekeya, learned counsel for the petitioner submittedthat the Tribunal erroneously rejected to recall its exparte order dated31.10.2001 passed in I.T.A.Nos.1265 to 1267/H/91 on the ground that theapplications were filed under Section 254 of the Income Tax AppellateTribunal Act (for short, ‘the Act’) though the applications were filed underRule 24 of the Rules and the parameters for consideration under bothprovisions are different and in that view of the matter, there is a totalmiscarriage of justice in considering the applications. He would furthersubmit that since there is no statutory remedy of filing appeal against theorders of rejection to recall the exparte order dated 31.10.2001 passed inthe appeals, the petitioner filed the present writ petitions before this Courtseeking to set aside the orders passed on merits in the appeals directing theTribunal to re-hear the appeals afresh and to pass appropriate orders. 4) On the other hand, learned counsel appearing for the Revenue wouldsubmit that there is an effective statutory remedy available against theorders passed by the Tribunal in the appeals under Section 260A of the Actand further under the guise of challenging the orders passed under Rule 24of the Rules the petitioner is challenging the orders passed by the Tribunalin the appeals on merits which is impermissible and prays to dismiss thewrit petitions. 4) On the other hand, learned counsel appearing for the Revenue wouldsubmit that there is an effective statutory remedy available against theorders passed by the Tribunal in the appeals under Section 260A of the Actand further under the guise of challenging the orders passed under Rule 24of the Rules the petitioner is challenging the orders passed by the Tribunalin the appeals on merits which is impermissible and prays to dismiss thewrit petitions. 5) We have gone through the order dated 30.10.2001 passed by theTribunal in I.T.A.Nos.1265 to 1267/H/91. The Tribunal had recorded in itsorder that the appeals came up for hearing before the Tribunal for more than40 times and majority of the adjournments were granted at the request of theassessee, as such no, further adjournments were granted making it clearthat the appeals would be disposed of basing on the evidence available onrecord. However, the assessee was given an opportunity of filing of writtensubmission within one week from the date of hearing i.e., from 15.10.2001. Admittedly, written arguments came to be filed on 23.10.2001 on behalf ofthe petitioner i.e., beyond the time granted for filing the written arguments. Itis not the case of the petitioner that while passing the orders, the Tribunal had failed to consider any of the material available and thereby anyprejudice is caused to them. A perusal of the order on merits itself wouldindicate that the very assessment officer himself had passed the ordersexparte to the best of his judgment as there was no material producedbefore him to support the contentions. In the first appeal, part of relief cameto be granted, and in further appeal, Tribunal had dealt with various aspectswhich have been raised in the grounds of appeal in detail. Without goingthrough the merits and demerits of the order, it is suffice to say that the orderdated 30.10.2001, passed by the Tribunal in appeals is an elaborate orderthough it is an exparte order. The writ petitioner had ample opportunity to filea statutory appeal under Section 260A of the Act which remedy wasavailable for both with respect to finding of facts if the findings otherwise areperverse and also with respect to finding of law subject to the limitation ofraising substantial questions of law in the given case. The exercise of writjurisdiction under Article 226 of the Constitution of India being discretionary,in the facts of the case, wherein in spite of ample opportunity was given tothe petitioner by the Tribunal the petitioner having failed to avail the same,now again cannot not turn around and say that he was deprived ofopportunity of hearing. It is not the case of the petitioner that the Tribunalhas no power to pass an exparte order. The exercise of the power by theTribunal as per proviso to Rule 24 of the Rules itself is a discretionary andthe Tribunal has exercised its discretion based on the material available onrecord and when we do not find such exercise of jurisdiction as discretionby the Tribunal, either malicious or arbitrary, there would be no justificationto this Court to interfere with the impugned orders of the Tribunal passedunder Rule 24 of the Rules. 6) For the above reasons, we see no reasons to interfere with the ordersof the Tribunal in exercise of extraordinary jurisdiction of this Court underArticle 226 of the Constitution of India. 7) Accordingly, all the writ petitions are dismissed. No order as to costs. 8) Miscellaneous Petitions, if any pending in these writ petitions, shall stand closed. _____________________ G. CHANDRAIAH, J Date:29.04.2014.Gk ____________________________ CHALLA KODANDA RAM, J HON’BLE SRI JUSTICE G. CHANDRAIAHANDHON’BLE SRI JUSTICE CHALLA KODANDA RAM Gk WRIT PETITION Nos.14083, 14104, 14109, 14111,14112,& 14123 OF 2002 Date:29.04.2014.