Orissa High Court
Poonam Pujari vs The Asst. Registrar Of Income Tax .... ... on 5 November, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
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 .... Opposite Parties
Appellate Tribunal, Cuttack and
others
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
JUDGMENT
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Date of Hearing and Judgment: 5th November, 2024
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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 12th August, 2024, disposing of the appeal ex-parte against
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 18th 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, 1963 - Provides 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 12th 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.
5. Notwithstanding aforesaid, in impugned order the Tribunal also
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
Digitally Signed Judge
SksHIGH COURT
Location: ORISSA
Date: 05-Nov-2024 18:21:39
