K. Sreedharan and Co. vs Assistant Commissioner of Income Tax and Ors

N. Dhinakar, J.—A penalty for delay in filing the return of the income was imposed upon the petitioner after initiating proceedings under s. 271(1)(a) of the IT Act. Aggrieved by the said order of penalty the petitioner filed on appeal before the second respondent which was allowed. Aggrieved by the said order made by the second respondent the Revenue filed an appeal before the third respondent. It is submitted that the appeal was posted for hearing on 10th Feb., 1994, and as the petitioners Chartered Accountant, who was representing the petitioner in the appeal, could not be present on the said day he sent a petition Ext. P3 dt. 7th Feb., 1994, seeking for an adjournment of the said case to a future date. The third respondent rejected the said application for adjournment and passed an order in Ext. P4. The said order Ext. P4 is, therefore, an order passed by the Tribunal ex parte.

The petitioner aggrieved by the said ex parte orders passed in Ext. P4 filed a petition to set aside those ex parte orders and he was later informed by the Asstt. Registrar of the Tribunal by his letter dt. 23rd May, 1994 (Ext. P6), stating that the Bench has decided not to register the petitions as miscellaneous petitions and therefore decided to reject the request. The petitioner assails the said letter, Ext. P6, send by the Asstt. Registrar.

There is no doubt that Ext. P4 order was passed ex parte. It is also not in dispute that the petitioner filed petitions to set aside those ex parte orders by filing petitions. The petitions filed by the petitioner to set aside those ex parte orders could be only under r. 24 of the Tribunal Rules which reads as follows :

Hearing of appeal ex parte for default by the appellant

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 authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent.

The proviso to the above rule shows that where an appeal has been disposed of in the absence of the appellant or his authorised representative 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 by restoring the appeal. The proviso mandates the Tribunal to consider the petition of the petitioner and then decide the said petition on its merits. A reading of Ext. P6 would show that the Tribunal decided not even to register the petitions and rejected it without giving an opportunity to the petitioner. Further, it is seen from Ext. P6 that there is no order of the Tribunal rejecting the said petition on its merits, but what was communicated to the petitioner was only the information by the Asstt. Registrar that the petitions of the petitioner were rejected without they even being registered as miscellaneous petitions. Principles of natural justice require that when a petition is filed seeking to set aside the ex parte orders, the Tribunal ought to have considered it after giving an opportunity to the petitioner to advance his case on the petitions and then decide it on its merits. The Tribunal cannot simply refuse the petitions and then direct the Asstt. Registrar to pass on the information that the Tribunal has decided not even to register the petition. No reasons are found given in Ext. P6 as to why the Tribunal decided not to register the petitions and why the petitioner cannot be given an opportunity to put forth his case on the petitions filed by him. In my view, Ext. P6 has to be quashed and accordingly it is quashed. The Tribunal is directed to consider the petitions of the petitioner seeking to set aside the ex parte order Ext. P4 and dispose them of on their merits after giving on opportunity to the petitioner or his authorised representative.

This original petition is disposed of with the above directions.