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TMI Blog2012 (9) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Toprani entered the date of hearing of the Misc. Application in his diary as 29th July, 2011 instead of 22nd July 2011 as a result of which he could not remain present at the hearing on 22nd July, 2011 resulting into dismissal of the Misc. Application on account of non appearance. In support, the affidavit of Shri Pankaj R. Toprani, Advocate was also filed. It was, therefore, prayed that the order passed by the Tribunal be recalled. 3. At the time of final hearing, the ld. counsel for the assessee submits that due to the mistake of the counsel for the assessee, the assessee should not suffer. He further submits that in the case of Shri Padam Prakash (HUF) vs. I.T.O. (2011) 131 ITD 121 (Del) [SB], the Tribunal has disposed of the Misc. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , miscellaneous application is dismissed. Order pronounced in the open court on this day of 22/7/2011. sd/- (D.K. AGARWAL) udicial Member sd/- (T.R. SOOD) Accountant member Mumbai: 22/7/2011" Against the said order, the assessee has filed Misc. application dtd. 11th August, 2011 inter alia stating that "due to the fact that Applicant's advocate, Shri Pankaj R. Toprani entered the date of hearing of the Misc. Application in his diary as 29th July, 2011 instead of 22nd July 2011 as a result of which he could not remain present at the hearing on 22nd July, 2011 resulting into dismissal of the Misc. Application on account of non-appearance". In support Shri Pankaj R. Toprani, Advocate has also filed an affidavit dtd. 11th A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was posted for hearing." 6. In the above case, Their Lordships have followed the decision of the Hon'ble Supreme Court in Rafiq v. Munshilal [1981] AIR 1981 SC 1400 wherein the Hon'ble Supreme observed as under (page 331 & 332 of (1988)172 ITR): " The disturbing feature of the case is that under our present adversary legal system, where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court, both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law." 7. In CIT vs. Khemraj Laxmichand (1978) 114 ITR 75 (M.P) it has been held that (Headnotes): " Held, that the question whether the mistake of the counsel was bona fide be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a partner during the relevant account year; (vi) that the firm's chartered accountants had been their standing chartered accountants for several years; (vii) that neither the firm nor the chartered accountants had at any time since after the disputed assessment year and till now committed any default in this respect; (viii) that the firm and its partners had all along remained under a bona fide impression that Form No. 11A must have been filed in time with the I.T. Department; (ix) that the mistake had been admitted by the chartered accountants and they had also requested that the assessee should not suffer for no fault of theirs and for a sheer mistake arising out of oversight on the part of the chartered accountants. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1993) 199 ITR 771 (All), CIT vs. K.M. Sugar Mills (P) Ltd. (2005) 275 ITR 247 (All), Brij Lal vs. ACIT (1997) 59 ITD 1 (Del)[TM] & Rahul Kumar Bajaj vs. ITO (1999) 64 TTJ (Nag)(SB) 200, the assessee filed Misc. Application u/s 254(2) of the Act against the order passed u/s 254(1) it has been held that the Tribunal was justified in recalling its order in exercise of power u/s 254(2). In the case before us, the assessee has filed second Misc. Application u/s 254(2) against the order passed u/s 254(2), therefore, the decisions relied on by the ld. counsel for the assessee are distinguishable and are not applicable to the facts of the present case. The other decision in CIT vs. Dr. T.K. Jairaj (2002) 256 ITR 252 (Ker.) is also not applicable a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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