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TMI Blog2008 (7) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that her counsel could not appear on 25th July, 2007, the date fixed for the hearing the appeal, on which date an adjournment was sought vide application dt. 24th July, 2007, by her counsel on the ground that he was busy in some other professional work regarding preparation of IT returns as 31st July, 2007 was the last date for filing of return of income-tax. In this regard an affidavit of her counsel has been filed, to support the contention that there was sufficient reason for the non-appearance of her counsel to whom she had authorized the representation of her appeal. It has been pleaded that the ex parte order so passed deserves to be recalled, as per the law and in the interest of justice. 3. On the other hand, this contention h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order was passed. 6. The learned counsel emphatically argued that it is a well known fact that the last week of July is the peak time for any counsel concerned with income-tax matters; therefore, it was not possible for the learned counsel to make appearance on 25th July, 2007. He has taken us though the records whereby it is found for a fact that a paper book was filed on 26th June, 2007 and the reasons mentioned in adjournment application were the same as have been mentioned now before us. The learned counsel has detailed the following reasons to show that the ex parte order was passed in violation of the principles of natural justice: 1. The reason for non-appearance given by the counsel was quite valid on the face of it. This is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f hearing. For ready reference paras 2 and 3 of the Tribunal order are being reproduced below: "At the time of hearing an adjournment application was moved on behalf of the assessee, however, the same was rejected taking note of the fact that on an earlier date i.e. on 26th June, 2007 adjournment was granted to the assessee with the following observations by the Bench: 'None for assessee. This is a stay granted matter. Adjourned to 25th July, 2007 as last opportunity. Notice by RPAD.' Despite this fact as observed another adjournment application was moved on the date of hearing which was rejected for the following reasons: 'Request of assessee cannot be allowed as this a stay granted matter and as per administrative instructions qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aper book was also filed by the counsel. On the second date of hearing again application for seeking adjournment in the 2nd week of August was filed detailing personal reasons by the then counsel. The averments of 2nd application which was rejected are supported by a duly attested affidavit of the then counsel. The Hon'ble jurisdictional High Court in the case of Babulal Jain vs. ITO (2008) 215 CTR (MP) 340 : (2008) 298 ITR 369 (MP) has held thus: "Allowing the appeal, that when counsel for the assessee made a submission that it would not be possible for him to appear because he would otherwise be professionally busy in some other Court, then such Court before whom the adjournment was prayed for, was ordinarily required to accommodate cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the High Court, that in allowing the rectification application the Tribunal gave a finding that the earlier decision of a co-ordinate Bench was cited before it but through oversight it had missed the judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under s. 43A. One of the important reasons for giving the power of rectification to the Tribunal under s. 254(2) was to see that no prejudice was caused to either of the parties appearing before it. The rule of precedent was an important aspect of certainty in the rule of law, and prejudice had resulted to the assessee since the precedent had not been considered by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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