2014 (2) TMI 1036 - HC - Income Tax

Recall of order Opportunity of being heard Held that - Assessee contended that the his version could not be put forth with - Order 41 Rule 21 of the Code of Civil Procedure provides that where an appeal is heard ex parte and judgment is pronounced against the respondent he may apply to the Appellate Court to re-hear the appeal - if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him - the Court has power to exercise the inherent power - The cause shown by the applicant is satisfactory and as such to secure the ends of justice it would be apt to recall the judgment and order dated dated 27.8.2013 thus all the applications are allowed with a cost - The judgment and order dated 27.8.2013 passed in the aforesaid appeals is recalled subject to payment of the cost Decided in favour of Assessee.

Summary

Issues involved:
1. Application for recall of judgment and order dated 27.8.2013.
2. Failure to present arguments due to scheduling issues.
3. Interpretation of Section 260A of the Income Tax Act.
4. Exercise of inherent power by the Court.
5. Consideration of justice and opportunity for hearing.

Analysis:

1. Application for Recall: The judgment discusses the application for the recall of the judgment and order dated 27.8.2013. The applicant had filed for a Special Leave Petition (SLP) before the Apex Court, which was deferred due to the filing of recall applications before the High Court. The applications for recall were accepted by the department's advocate, and the Court proceeded to hear the applications.

2. Failure to Present Arguments: The Senior Advocate representing the applicant highlighted that on 7.8.2013, the appeals were treated as heard, and the judgment was reserved for a later date. Due to scheduling conflicts, the assisting counsel requested an adjournment, which was denied by the Court. As a result, the applicant did not present arguments on the questions of law adjudicated by the Court, leading to a lack of opportunity to rebut the department's submissions.

3. Interpretation of Section 260A: The judgment refers to Sub section (7) of Section 260A of the Income Tax Act, inserted by the Finance Act, 1999. It emphasizes that the provisions of the Code of Civil Procedure, particularly Order 41 Rule 21, apply to appeals under Section 260A. This provision allows a party to apply for a re-hearing if they were not duly served notice or were prevented from appearing due to sufficient cause.

4. Exercise of Inherent Power: The Court acknowledged its power to exercise inherent power, as provided under the Code of Civil Procedure, to re-hear appeals in certain circumstances. The Senior Advocate argued that the fault on their part led to the inability to present the assessee's version adequately, requesting a sympathetic consideration for the recall of the judgment.

5. Consideration of Justice: After hearing the arguments and perusing the records, the Court found the cause shown by the applicant satisfactory. In the interest of justice, the Court decided to recall the judgment and order dated 27.8.2013. The judgment directed the applicant to pay a specified cost within a month, which would be transmitted to a scheme run by the Oudh Bar Association for assistance to its members and families in distress.

In conclusion, the High Court allowed the applications for recall, emphasizing the importance of providing a fair opportunity for the applicant to present arguments. The judgment highlighted the legal provisions governing appeals under the Income Tax Act and the Court's inherent power to ensure justice is served.