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TMI Blog2014 (1) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt of the order, which cannot be considered as a reasonable cause for non-appearance in terms of the proviso to Rule 24 and Rule 25 of the Tribunal - The assessee has failed to show that there was a reasonable cause for non-appearance on the date of hearing of the appeal as prescribed in the proviso to Rule 24 and Rule 25 of the Appellate Tribunal Rules, 1963 – Decided against assessee. - M.P. No. Arsg. out of Appeal No. 71/Coch/2013 1107/Coch/2005 1999-2000 72/Coch/2013 1108/Coch/2005 2000-01 73/Coch/2013 1109/Coch/2005 2002-03 74/Coch/2013 689/Coch/2006 1999-2000 75/Coch/2013 690/Coch/2006 2000-01 76/Coch/2013 691/Coch/2006 2003-04 - - - Dated:- 31-12-2013 - Shri N. R. S. Ganesan, JM And B. R. Baskaran, AM,JJ. For the Petitioner : Shri C. Pankajakshan C. Govind, CA For the Respondent : Smt. Latha V. Kumar, Jr. DR ORDER Per B. R. Baskaran, Accountant Member: All these Miscellaneous Petitions have been filed by the assessee seeking recall of the ex-parte common order dated 13-03-2009 passed by the Tribunal against the appeals filed by the assessee as well as the Revenue and they relate to the assessment years 1999-2000 to 2004-05. 2. The assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artered Accountants M/s. Varma Varma, Thiruvananthapuram. After discussions with them, a view was taken that in so far as all or any expenditure (not being in the nature of capital expenditure) laid out or expended wholly and exclusively for the purpose of earning the income, including depreciation on the assets used would be allowed u/s. 57(iii) of the Act, there could possibly be not much difference whether the income is assessed as Income from Business as prayed for in the appeal or as Income from Other Sources as held by the Hon. Bench. Since the legal counsel of the Petitioner was no more and the cases relating to the four old assessment years (Assessment Year 2004-05 and prior years) and most of the records and papers relating to the appeals were with the learned Advocate, no further action was taken on the appellate orders. 4. Though the appellate order of the Hon. Bench were passed on 07- 04-2009, the Assessing officer gave effect to the orders of the Hon. Tribunal, for all the assessment years involved in the appeals, by his order passed towards the end of February 2013, i.e., after a lapse of little less than 4 years. While passing the order as above, the Assessing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved, from the office of the Advocate in due time. The Chartered Accountants to whom the Petitioner referred the matter were under the bonafide belief that the order of the Tribunal though ex- parte, was fair in so far as no appearance was made by your Petitioner and since in any case the Hon. Bench had held that the income is to be assessed under Other Sources, it was their bonafide understanding that all the admissible deductions will be allowed u/s. 57 and it may therefore not be necessary to approach the Hon. Bench again to recall their order for all the assessment years and hear the appeals afresh, which may or may not be appreciated since, it was your Petitioner, who defaulted in not having appeared for the hearings posted on various dates. However, your Petitioner as well as the Chartered Accountants could not anticipate that the Assessing officer would make such huge disallowances both in respect of depreciation and on proportionate expenses relating to investments. Effectively, the Assessing officer, while assessing the income, neither allowed the deductions admissible under Income from Other Sources under Sec. 57, nor allowed the deductions admissible under Income from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and respondent. For the sake of convenience, we extract below the relevant rules:- "Hearing of appeal ex parte for default by the appellant. 24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal. Hearing of appeal ex parte for default by the respondent. 25. Where, on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant appears and the respondent does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the appellant. Provided that where an appeal has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal that there was sufficient cause for non-appearance when the appeal was called on for hearing. From the explanations given by the assessee, we notice that the only reason given is that the senior Advocate Shri P. Balachandran, to whom the appeals were entrusted, passed away on 26.12.2008 and his juniors did not give advice to the assessee with regard to the appeals pending before the Tribunal. We have already noticed that the assessee is a Kerala Government undertaking, which is normally assisted by able people. Further it had engaged a Senior Counsel for handling the appeals pending before the Tribunal. It is also admitted that the assessee was aware of the demise of the Senior Counsel in December 2008. From the order sheet of the record, we notice that the Counsel of the assessee had filed adjournment petition on 03.12.2008, i.e, before his death and the appeals were then adjourned to 11.3.2009. 8. There should not be any dispute that the assessee also holds equal responsibility to pursue the appeals and further, a prudent business man would normally take extra caution when the counsel is ill. Further, on knowing the demise of the Counsel, a prudent business man would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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