IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
D.B. INCOME TAX APPEAL NO.228/2010
M/s MEHRU ELECTRICAL & ENGG.(P) LIMITED
Vs.
THE COMMISSIONER OF INCOME TAX, ALWAR & ORS.
DATE:27.04.2012
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I
HON'BLE MR. JUSTICE MAHESH BHAGWATI
Mr. R.K. Agarwal, Senior Counsel assisted by
Mr. Naresh Gupta, for the appellant.
Ms. Parinitoo Jain, for the respondents.
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At the request of the parties,
arguments were heard and the appeal is being
disposed off finally.
2. Assessee/appellant has preferred this
appeal under Section 260A of the Income Tax
Act, 1961 against the order dated 26.02.2010
passed by the Income Tax Appellate Tribunal,
Jaipur Bench 'B', Jaipur(hereinafter referred
to as 'the Tribunal'), whereby the Tribunal
allowed the appeal filed by the Revenue
against the order dated 30.12.2008 passed by
the Commissioner of Income-Tax(Appeals),
Alwar.
3. Submission of the learned counsel for
appellant is that appeal before the Tribunal
was fixed on 09.02.2010. Counsel for the
assessee had moved an application for
adjournment of the case, in advance, on
08.02.2010 on the ground that he is going to
Mumbai for some urgent work. The case was
taken up on 09.02.2010. Application for
adjournment, filed on behalf of Counsel for
assessee, was rejected and the case was heard
ex-parte and appeal of the Revenue was
allowed. He received a copy of order dated
26.02.2010 on 26.03.2010 and preferred the
appeal before this Court. He submitted that
from para 2 of the impugned order, it is
clear that adjournment application was
rejected only on the ground that a last
opportunity was granted to him to argue the
appeal. He submitted that Counsel for
assessee had to go outside Jaipur due to some
urgent work, but the said request was not
considered and by a non-speaking order,
application was rejected. He also submitted
that even if a last opportunity was granted
on last date, it does not mean that on
sufficient ground the case can not be
adjourned again. Since, it is matter where
tax effect is more than Rs. 46 lacs,
therefore, it was incumbent on the part of
the Tribunal to adjourn the case. He,
therefore, submitted that order of the
Tribunal may be set aside and the case may be
remitted back to the Tribunal for decision on
merits, afresh.
4. Learned counsel for the Revenue
defended the impugned order of the Tribunal
and submitted that Counsel for assessee was
avoiding the hearing and a last opportunity
was granted to him, but again he sent an
application for adjournment of the case,
therefore, the Tribunal rejected the
application and heard the Counsel for the
Revenue and rightly decided the appeal.
Therefore, no interference in the order of
the Tribunal is called for by this Court.
5. We have considered the submissions of
the learned counsel for the parties and
examined the impugned order and original file
of 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 a
last opportunity to the Counsel for assessee,
the same can be adjourned or not, again on
the date fixed, if sufficient or reasonable
cause exists on that day?”
7. Undisputed facts of the case are that
appeal before the Tribunal was fixed on
11.01.2010 and at the request of the
authorized representative, hearing of the
case was adjourned to 09.02.2010, giving him
a last opportunity. Counsel for assessee
moved an application for adjournment of the
case on 08.02.2010 as he was going to Mumbai
for some urgent work. The appeal was taken up
by the Tribunal on 09.02.2010 and the
application was rejected. Order-sheet dated
09.02.2010 of the Tribunal shows that it is a
rubber stamped order-sheet, which has been
filled in. It does not show any reason for
rejecting the application. It also does not
disclose as to whether appeal has been heard
and judgment/order has been reserved or next
date is fixed in the case. Impugned order has
been passed on 26.02.2010, but in the
original file of the Tribunal, it is
mentioned that date of pronouncement is
12.03.2010. In another rubber stamped ordersheet, the date 26.02.2010 is filled in
blank, which is not legible. However, from
para 2 of the impugned order dated
26.02.2010, it reveals that a last
opportunity was granted to the learned
authorized representative of the assessee for
arguments in the appeal and the case was
fixed for hearing on 09.02.2010. The
adjournment application dated 08.02.2010 was
rejected because it was clearly mentioned on
the last hearing that both the parties are
being given the last opportunity.
8. From the proceedings of the Tribunal
dated 11.01.2010, it is clear that last
opportunity was given and the case was
adjourned for 09.02.2010. Application for
adjournment was filed on 08.02.2010, which
was put up for consideration before the
Tribunal on 09.02.2010. From the application,
it appears that Counsel for assessee had to
go to Mumbai due to some urgent work.
Application was available on record. No one
was present on behalf of assessee. Learned
Tribunal, in absence of Counsel for assessee,
rejected the adjournment application.
Ordinarily, it is not incumbent on the part
of the Tribunal to adjourn the case again
when a last opportunity had already been
granted to the Counsel for assessee, however,
there may be number of circumstances where
adjournment becomes necessary, in the
interest of justice. If Counsel for assessee
had to go for some urgent work to Mumbai and
an application for adjournment was moved in
advance, then in the interest of justice, a short adjournment should have been granted.
If number of opportunities had already been
afforded to the Counsel for assessee, then
adjournment could have been granted, on
payment of cost. The Tribunal has not
assigned any reason as to whether reason
mentioned in the application for adjournment,
constituted sufficient cause for adjournment
or not? Even if, a last opportunity is
granted and case is fixed for hearing and
sufficient cause is shown on the date fixed
for hearing, then the case can be adjourned
and it should be adjourned, in the interest
of justice.
9. In these circumstances, we are of the
view that the Tribunal committed an
illegality in rejecting the application for
adjournment and in deciding the appeal, exparte, without hearing the learned counsel
for assessee, in the facts and circumstances
of the present case and order of the Tribunal
deserves to be set-aside on this ground alone
and substantial question of law, formulated
above, is liable to be answered and is hereby
answered in favour of the assessee.
10. Consequently, the appeal is allowed.
Impugned order of the Tribunal dated
26.02.2010 is set-aside and the case is
remitted back to the Tribunal for decision on
merits, afresh. However, cost of Rs.21,000/-
(Rs. Twenty one thousand) is imposed on the
assessee. If the amount of cost is deposited
in the Department within a period of four
weeks and receipt thereof is furnished in the
Tribunal, then the Tribunal will decide the
matter afresh on merits, after hearing both
the parties, otherwise this appeal will be
deemed to have been dismissed and no further
opportunity will be granted to the assessee.
11. Parties are directed to appear before
the Income Tax Appellate Tribunal, Jaipur
Bench 'B', Jaipur on 28.05.2012. No fresh
notice in this regard will be issued to the
parties by the Tribunal.
12. Registry is directed to send the
record of the Tribunal back, immediately.
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