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TMI Blog1996 (11) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the assessee-respondent. The respondent, Manna Lal and Sons (P.) Limited, was the appellant in the aforesaid appeal that was listed on August 21, 1984, before the Tribunal, for the first time, for hearing. The assessee-respondent, which is located at Kanpur, sent an application for adjournment stating that it has not been able to instruct its counsel fully and the appeal be adjourned to some other date. The application was received in the office of the Tribunal on August 18, 1984, and the senior member of the Bench directed the same to be put up before the concerned Bench on the date of hearing. The Bench rejected the application and heard the appeal in the absence of the appellant and the same was partly allowed by order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee was of the bona fide belief that the case would be adjourned on August 21, 1984. In the circumstances, it is urged that the assessee was prevented by sufficient cause from recording his presence on August 21, 1984. It is, therefore, prayed that the order of the Appellate Tribunal may be recalled, so that the assessee may be given an opportunity of being heard afresh. " Then, it allowed the application by observing as under : " 6. We have gone through the entire facts of the case for our consideration. It is seen that the appeal by the assessee was fixed for the first time and the assessee had applied for adjournment much earlier on the ground that the assessee could not brief the counsel finally. The assessee is at Kanpur and clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Income-tax Appellate Tribunal had no power to recall an order passed under section 256(1) of the Income-tax Act rejecting an application requiring the Tribunal to make a reference to the High Court. I have gone through this judgment and I am of the view that the same is restricted to the effect of the rejection of the application under section 256(1) and does not cover a situation like the present one. A person whose application under section 256(1) has been rejected by the Tribunal has another opportunity of making an application to the High Court itself under section 256(2) of the Act. There is a direct judgment of this court on the point. In Bhagwan Radha Kishen v. CIT [1952] 22 ITR 104, a Division Bench of this court held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the fate of the adjournment application and in case of its rejection may arrange for its representation at the hearing. Admittedly, this was not done and, therefore, the Tribunal's order recalling the ex parte order is absolutely just. In Sangram Singh v. Election Tribunal, AIR 1955 SC 425, the Supreme Court observed as under (page 429) : " (16) Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties ; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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