Judgment:
1. As there was a difference of opinion between the Accountant member and the Judicial member, following question was referred to a Third Member: "Whether on the facts and in the circumstances of the case, the assessee was prevented by reasonable cause from attending on 5.2.2001 and accordingly, the order passed by the Tribunal ex parte deserves to be recalled?" 2. The learned Vice-President, Shri M.K. Chaturvedi, sitting as Third Member by his opinion dt 6.3.2003 has concurred with the view of the Accountant Member. In accordance with the majority view, we recall The order of the Tribunal dated 6.2.2001 and direct the Registry to fix up the case for hearing.
These Miscellaneous Applications came before me as a Third Member to express my opinion on the following question: "Whether on the facts and in the circumstances of the case, the assessee was prevented by reasonable cause from attending on 05.02.2001 and accordingly, the order passed by the tribunal ex parte deserves to be recalled?" 2. I have heard the rival submissions in the light of material placed before me. The appeals of the assessee were dismissed in limine for non-appearance In the miscellaneous Applications it was explained before the Tribunal that there existed a reasonable cause for non-appearance. There was family dispute. The assessee was based at Jalgaon and was in the process of shifting to Indore. The counsel of the assessee was based at Mumbai. My attention was invited on the letter given by P Sanghani & Co., Chartered Accountants of Mumbai. In that letter the counsel of the assessee had advised to take adjournment on 26.06.2000.
2. It was submitted before me that due to the locational disadvantage the assessee was not in a position to engage other counsel to represent its case. Before me, M/s I P Sachdeva & Co., Advocates from Indore appeared. This shows that the assessee did change the counsel. I have Perused the reasons adduced by the assessee to demonstrate the reasonable cause for not attending the case on the appointed date. In my opinion, there existed a reasonable cause for not attending the matter on the appointed date. As such, the learned Accountant Member was correct in recalling the case. I am inclined to agree with his conclusion on this count.
3. The matter will now go before the regular Bench for deciding the Miscellaneous Applications in accordance with the opinion of the majority.
As there is a difference of opinion between the Accountant Member and the Judicial Member, the matter is being referred to the President of the Income-tax Appellate Tribunal with a request that the following question may be referred to a Third Member of to pass such orders as the President may desire: "Whether on the facts and in the circumstances of the case, the assessee was prevented by reasonable cause from attending on 5.2.2001 and accordingly, the order passed by the Tribunal ex parte deserves to be recalled?" The above three appeals were decided ex parte as the assessee failed to appear on the last date of hearing. By this Application, the assessee has pointed out that on the date of hearing, i.e. on 5.2.2001, the assessee company was hard pressed to seek adjournment for the reason that the matter was of old nature and needed sufficient time for preparation and further several disputes which had been continuing since 1996-97 within the family members with a view to avoid further disputes and litigat on in the family matters, the assessee was in the process of shifting to Indore (Madhya Pradesh). It has further been submitted that the assessee has now engaged M/s. I.P. Sachdeva & Co.
Advocates (Tax Law Consultants), In (sic) to look after the tax matters.
2. In the written submissions, It has been submitted that the assessee was prevented by reasonable cause from attending on 5.2.2001 and accordingly, in the interest of substantial justice, the appeals be recalled and the assessee will co-operate in the matter of getting the appeals disposed of.
3. After going through the written submissions which is accompanied with an affidavit of the Director on the Company and after hearing the (sic) we held that it is a fit case where the appeals are recalled.
Accordingly, we recall our orders and restore the appeals.
5. I have had an accasion to go through the proposed order of the learned Accountant Member but despite my best persuasion I am unable to agree with the findings and conclusions as drawn by him and my reasons for being so are as under.
6. The appeals were decided ex parte as the assessee failed to appear on the last date of hearing. Now the assessee has pointed out in the written submission filed in Misc. application that on the dare of hearing i.e. 5-2-2001 the assessee company was hard pressed to seed adjournment for the reasons that the matter was of old nature and needed sufficient time for preparation and further several disputes which had been continuing since 1996-97 within the family members, with a view to avoid further disputes and litigation in the family members, the assessee was in the process of shifting to Indore (Madhya Pradesh).
It has further been submitted that the assessee has now engaged some Lawyer to look after the tax matters. It was prayed that the assessee was prevented by reasonable cause from attending on 5-2-2001 and accordingly, in the interest of justice it was prayed for recalling of the appeal and the assessee shall co-operate in the matter of getting the appeals disposed of where as the learned D.R. strongly opposed the applications of the assessee and submitted that ground taken for adjournment has properly been dealt with by the Bench and speaking order has been passed. So it calls for no interference at all. It was next contended that so far as family disputes or Litigations etc. is concerned, it is a case of company and no such plea was there in the adjournment application. Therefore, no cognizance can be taken of the same at this stage. Since assessee has been getting the proceedings prolonged on the same plea for a number of occasions without getting it decided, therefore, this Bench of the Tribunal has rightly taken a decision to reject the request of the assessee and no material has been placed by the assessee by virtue of which discretion once exercised in rejecting the request of adjournment could be revoked. It was therefore, urged for dismissal of the Misc. application.
7. After hearing the learned D.R., going through the application of the assessee as well as the arguments as contained in the written submissions and the order of the Tribunal dated 6-2-2001 I find that while considering the request for adjournment, the Tribunal observed as under: "These appeals were fixed for hearing on 56-6-200. On the said date, a letter for adjournment was received stating therein, "in this regard our Chief Accountant has gone at fare at Jaganathpuri, he will come after 1/15 days, please note it". The request of the assessee was granted and the hearing was adjourned to 4-9- 2000. On 4-9-2000 gain a letter for adjournment was received stating therein, "In this regards we state that since the matter of appeal is of old nature, we require sufficient time to gather information for preparing the matter with the consultant". Again the request was granted and the case was adjourned to 20-11-2000. On 20- 11-2000, the Accountant Members was on leave and accordingly, the case was adjourned to 5-2-2001 and an intimation was sent to the assessee by registered post. The assessee vide letter dt. 30-1-2001 has again requested for adjournment repeating the same old reason, "In this regard, we state that since the matter of appeal is of old nature.
We require sufficient time to gather information for preparing the matter with the consultant". It is significant to note that on none of the occasions the assessee appeared and simply shooted letters for adjournments repeating therein the general reason that the assessee required more time to prepare the case . In our opinion sufficient opportunities have been given to the assessee and accordingly, we reject the assessee a application dt. 30-1-2001".
Since the request for adjournment was considered on its merits after discussing each and every aspect in detail and the assessee being a private limited company, there appears to be no relevance about and family disputes or litigation which too was not supported by any evidence and the affidavit is self serving one Morever, these pleas were not there in the application seeking adjournment and therefore there is no sufficient material to make out a case for recalling or the order. Apart from this, if the request of the assessee about reasonable cause is accepted at this stage by reconsidering the earlier decision, it would amount to review of the order passed on the said application when this request was already there at the time of deciding the appeal which was duly considered and rejected after application of mind and moreso, review is not permissible under the law as held by various Courts including the following cases reported as under: 8. Therefore, in my considered view, no case has been made out for recalling the order passed by the Tribunal. Further to grant an adjournment is a matter of discretion to be exercised judiciously and while disposing of the application of the assessee for adjournment, this Bench of the Tribunal passed a very elaborate and reasoned order as indicated above and now the assessee has come with different pleas including that there were disputes amongst its family members and in order to avoid the litigation and disputes, the assessee has shifted to Indore etc. which is of no consequence and finding no merits in the request of the assessee, I dismiss the applications of the assessee