JUDGMENT
1. The appeal is admitted for hearing on the following substantial question of law:
Whether, the learned member, the Income-tax Appellate Tribunal was right and justified in proceeding ex parte against the appellate order despite the prayer of the appellant’s counsel to adjourn the case for a short while?
2. With the consent of parties, the matter is finally heard.
3. It is to be noted that Income-tax Appeal No. 106/JAB/2006 pertaining to the assessment year 1999-2000 was filed against the order passed by the learned Commissioner of Income-tax (Appeals), Gwalior, dated January 16, 2006. The appeal on the earlier occasion was dismissed on the point of limitation vide order dated December 15, 2006. The order passed by the Tribunal not being palatable to the assessee came to be challenged by him before the High Court in an appeal under Section 260A of the Income-tax, Act. The High Court allowed the appeal, set aside the dismissal and remanded the matter to the Tribunal to hear the same on the merits vide its order dated March 2, 2007, passed in M.A.I.T. No. 33/2007.
4. After the matter was received the Tribunal issued notices to the parties. On the date of hearing, that is, June 7, 2007, the assessee’s counsel made an application for adjournment submitting, inter alia, that the matter be adjourned to June 18, 2007. The application was contested tooth and nail and the learned Member, Income-tax Appellate Tribunal after rejecting the prayer for adjournment, proceeded to hear the appeal ex parte. The appellant is again before this court.
5. Shri Mishra, learned Counsel for the appellant, without touching the merits of the case, submitted that the haste in which the learned Member proceeded in the matter would clearly show that he was bent upon dismissing the appeal and was not ready and willing to grant proper opportunity to the appellant to contest the matter on the merits. He submitted that a simple adjournment for 10/12 days was not going to make much difference and by not granting the adjournment the learned Member, Income-tax Appellate Tribunal, has committed an illegality, which borders on perversity.
6. Shri Lal, learned Counsel for the respondent, however, submitted that in a case where after notice the appellant does not appear, the Tribunal has authority and power to proceed ex parte against the appellant and decide the matter after hearing the Departmental representative. He, however, submitted that in accordance with rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963, the present appellant has a right to make an application for setting aside the ex parte order, but concedes that the High Court if finds that the order is illegal because of non-exercise of jurisdiction and discretion, then this Court in appeal can interfere and set aside the ex parte order.
7. After hearing learned Counsel for the parties, we must immediately observe that the case was taken up on June 7, 2007, and learned Counsel for the assessee had filed the application for adjournment on June 6, 2007, i.e., a day before the date of hearing, with a submission that he was likely to be detained in the High Court and it would not be possible for him to appear in the court. True it is that business of a counsel in one court would not provide a ground to remain absent, but when counsel appearing makes a submission that it would not be possible for him to appear because he would otherwise be professionally busy in some other court, then such court before whom the adjournment is prayed for, is ordinarily required to accommodate counsel, because such accommodation is not only to accommodate counsel but also amounts to showing respect to other court before which such counsel has to put his appearance.
8. In the present matter an adjournment for 10/12 days was not going to make any difference nor the learned Member, Income-tax Appellate Tribunal has given any good or valid reason not to adjourn the case, but for saying that he could not find any valid ground for adjourning the matter.
9. Taking into consideration the totality of the circumstances, we are of the considered opinion that the learned Tribunal was unjustified in not adjourning the matter. Our findings would also be buttressed by the fact that the adjournment was sought for 7th June and a fixed date of 18th June was sought. If the Member, Income-tax Appellate Tribunal, was in such a hurry, then he should have decided the matter immediately instead of delivering the judgment almost after 11 weeks.
10. For the reasons aforesaid, we allow the appeal. We answer the question in favour of the assessee and hold that the learned Tribunal was not justified in proceeding ex parte and decide the matter against the assessee.
The order passed by the Tribunal is hereby set aside and quashed. The parties present before this Court shall appear before the Tribunal on February 25, 2008. The Tribunal shall give a fixed date to the parties and shall hear them on the said date and decide the matter in accordance with law.