2004 (7) TMI 45 - HC - Income Tax

Ex Parte order - application for recalling the ex parte order - we find that sufferance from jaundice on the date when the appeal was taken up is a sufficient ground to prevent a person from appearing when the matter is called on for hearing. This sufferance from jaundice is supported by a medical certificate. Nor the learned Tribunal had disbelieved the same neither it had disbelieved the fact that the assessee was suffering from jaundice. Thus, we are of the opinion that the assessee was able to make out sufficient cause satisfactory to the Tribunal to explain his non-appearance. - We allow the application for recalling the ex parte order and restore the appeal.

Summary

Issues:
- Admission of appeal at the initial stage
- Rehearing application due to non-appearance
- Interpretation of Rule 24 of the Appellate Tribunal Rules, 1963

Admission of Appeal:
At the outset, the Court noted that the appeal could potentially be disposed of based on limited grounds. Despite the usual practice of not allowing arguments on merits at the admission stage, the Court decided to hear both parties on the question of admission. The respondent argued against admission while addressing the merits, leading to a unique situation where the Court chose to consider the appeal at the admission stage itself, with the consent of both parties.

Rehearing Application:
The Tribunal initially disposed of the appeal ex parte due to the assessee's non-appearance, leading to a subsequent application for rehearing. The Court observed that the assessee failed to show diligence by obtaining adjournments on multiple occasions, indicating a lack of genuine effort. However, the Court emphasized Rule 24 of the Appellate Tribunal Rules, which allows for the restoration of an appeal if the assessee proves sufficient cause for non-appearance when the appeal was called for hearing. The Court highlighted that the phrase "when the appeal is called on for hearing" holds significance, emphasizing the need for a genuine reason for non-appearance.

Interpretation of Rule 24:
In interpreting Rule 24, the Court stressed that the assessee's explanation for non-appearance must be evaluated based on whether there were sufficient reasons preventing attendance when the appeal was called for hearing. In this case, the assessee's medical condition, supported by a medical certificate, was deemed a valid reason for non-appearance. The Court concluded that the sufferance from jaundice constituted sufficient cause, warranting the restoration of the appeal. The Court set aside the previous order and allowed the application for recalling the ex parte order, emphasizing that the Tribunal should rehear the appeal on its merits without further adjournments.

In a concurring opinion, the second judge agreed with the decision, emphasizing the importance of the medical certificate supporting the assessee's claim of suffering from jaundice. The judgment highlights the adherence to procedural rules and the significance of genuine reasons for non-appearance in legal proceedings.