Case Law Details
Under proviso to Rule 24 of the Appellate Tribunal Rules the assessee has to show that there was sufficient cause for his non-appearance and only in the event of proving sufficient cause for non-appearance, ex-parte order passed by the Appellate Tribunal can be restored. It is, therefore, necessary to see as to whether reasons given by the assessee can be considered as sufficient cause for non-appearance.
We have carefully gone through the submissions made by the counsel and find that the assessee could not prove sufficient cause for non-appearance on the date fixed for hearing. If Mr. Thankanchan/Shah/ Subramanian claims to be the authorized representatives they ought to have filed their respective power of attorney/authorization memo but no such authorization memo was available on record.
The appeals were dismissed twice and on few occasions it was brought to the notice of the party that adjournments were being sought on spurious grounds.
It also deserves to be noticed that assessee engaged M/s. Shah & Sanghvi, CAs which is evident from the fact that the said CAs have filed these appeals, along with their covering letter wherein it was stated that they were requested to file appeals on behalf of the assessee, which implies that they were the authorized representatives but even M/s. Shah & Sanghvi did not file the power of attorney.
Though Mr. M. Subramanian appeared on number of occasions and was also successful in getting earlier ex-parte order recalled, fact remains that the power of attorney was not filed and it was filed only when it was verified and pointed out during the course of hearing of the present Miscellaneous Applications which also indicates that the assessee as well as his counsels have done lackluster attempt to represent the matters by not fulfilling all the criterion necessary to represent the matter before the Tribunal, in time.
Under these circumstances, we are of the firm opinion that explanation of the assessee for non-appearance does not deserve to be accepted. We therefore dismiss the present Miscellaneous Applications.
INCOME TAX APPELLATE TRIBUNAL
“C” Bench, Mumbai
Before Shri D. Manmohan (VP) & Shri Rajendra Singh (AM)
M.A. No. 721/Mum/2012 arising out
I.T.A. No. 7149/Mum/2008
(Assessment Year : 1988-89)
M.A. No. 722/Mum/2012 arising out
I.T.A. No. 7150/Mum/2008 – (Assessment Year : 1990-91)
Shri Paresh S. Shah Vs. ITO
Assessee by : Shri M. Subramaian
Department by: Shri O.P. Singh
Date of Hearing : 13.9.2013
Date of Pronouncement : 20.9.2013
ORDER
Per D. Manmohan (VP):
By these Miscellaneous Applications the assessee seeks recall of the order passed by the ITAT “C” Bench Mumbai in ITA No. 7149 & 7150/Mum/2008. Admittedly the appeals were filed on 3.10.2008 and were adjourned on number of occasions at the request of the authorized representative of the assessee. As pointed out by learned Departmental Representative, assessee appears to have taken help of M/s. Shah & Sanghvi, CAs to file the appeals before the Appellate Tribunal, as could be seen from the covering letter filed along with Form No. 36 indicating that they were authorized to file the appeals on behalf the assessee. However, Shah & Sanghvi, CAs have not filed power of attorney. Though number of adjournments were taken, assessee having not appeared and kept on seeking adjournments on some ground or the other, appeals were dismissed on the ground that the assessee is not interested in pursuing the appeals. Upon receipt of the order dated 24.2.20 10 the assessee moved Miscellaneous Applications wherein it was contended that the applicant’s representative could not attend the hearing as the train he was travelling got delayed which resulted in non-appearance. It was submitted that Mr. M. Subramanian, Advocate was also sick. However, no power of attorney was filed even at this stage either of CAs., M/s. Shah & Sanghvi or Mr. M. Subramanian, Advocate. The Bench appeared to have been under the impression that the counsel must have followed procedure of filing power of attorney before making his appearance and hence it recalled it’s earlier order.
2. Even after recalling the appeals the assessee continued to seek adjournments on one pretext or the other. At this juncture, the Bench had come to a conclusion that the assessee is not serious in pursuing the appeals and seeking adjournment on spurious grounds. Vide order sheet dated 12.4.2011 the Bench awarded cost of Rs. 1000/- for granting adjournment as the reason given by the assessee is not convincing. Even thereafter the assessee sought number of adjournments. Finally when the matter was listed for hearing on 29.11.2011 the Bench noticed that every time adjournment was taken on the ground that the Accountant is out of station but none appeared on behalf of the assessee and even Vakalatnama of the assessee’s counsel is not on record; therefore it was concluded that the assessee is not interested in pursuing the appeals diligently. By applying the decision of Hon’ble Jurisdictional High Court in the case of M/s. Chemipol Vs. UOI & Ors. (in Central Excise Appeal No. 62 of 2009 vide order dated 17.9.2009), the Bench dismissed the appeals; Since the assessee wasted precious time of the Court by seeking adjournments, the Bench directed the appellant to pay cost of Rs. 2,000/- per appeal.
3. Aggrieved by the order dated 29.11.2011, present Miscellaneous Applications were filed by the assessee. Though these present Miscellaneous Applications were filed on 30.11.2012, Shri M. Subramanian, Advocate filed his power of attorney duly signed on 26.4.2013. When the matter was first listed for hearing he submitted that the very fact that he appeared in the first round of litigation i.e. in M.A. No. 284 & 285/Mum/2010 and nobody raised an objection, he must have filed his power of attorney. When called upon to furnish the proof of the same, learned counsel could not furnish any evidence.
4. It deserves to be noticed here that in Mumbai, despite repeatedly pointing out in each and every case, learned counsels rarely follow the practice of filing the power of attorney and many Members of the Tribunal, who do not believe it be their obligation to verify the availability of power of attorney, may not point out the same to the counsels and it results in counsels appearing without filing a power of attorney. There are equal number of occasions where several other Members, including Members of this Bench, have had occasion to point out that there was no power of attorney and counsels filed xerox copies or take further time to file power of attorney. In fact some would go to the extent of stating that they assumed that the power of attorney is on record and when we verify the file (though it is their duty to file power of attorney) and inform the counsel that there is no power of attorney then fresh power of attorney is filed. Particularly in the bench which is presided over by the Vice President, the registry notes on the file that the power of attorney of a person, who is representing the matter, is not on record and then the power of attorney is filed, notwithstanding the fact that before filing the power of attorney the same counsel or Chartered Accountant must have already taken adjournments on several occasions.
5. Reverting to the case on hand, the record clearly indicates that the power of attorney was not filed earlier and there is no proof whatsoever to show that Shri Thankanchan or M/s. Shah & Sanghvi, CAs have filed power of attorney/authorization memo. Learned Counsel for the assessee Mr. M. Subramanian filed an Affidavit of the Accountant of the assessee to submit that he was on leave (on pilgrimage to Kerala) and hence he could not present himself before Hon’ble Court on 29.11.2011 resulting in disposal of the matter ex-parte, qua the assessee.
6. Learned Departmental Representative filed written submissions dated 6.9.20 13 wherein it was submitted that the assessee had taken number of adjournments on spurious grounds which is evident from the fact that the Bench has already awarded cost and now a new plea is raised that Shri P.S. Thankanchan was representing the assessee whereas, even the assessment record does not have any evidence to show that he was ‘authorized representative’ as per section 288(2) of the Income Tax Act. It was also pointed out that even if he has been engaged, no such authorization has been filed before the Tribunal. Further no evidence with regard to leave or visit to Kerala by Shri P.S. Thankanchan was made available. It was also pointed out that though the applicant has emphasised that presence of applicant’s regular representative was very essential to represent the case, the record suggests that the assessee’s authorized representative was M/s. Shah & Sanghvi, CAs who have also not filed power of attorney and hence taking a new plea, that presence of Shri P.S. Thankanchan is necessary, does not deserve to be accepted. Learned Departmental Representative thus strongly submitted that the Bench had correctly concluded that the assessee was not interested in prosecuting the matter as otherwise either the assessee would have appeared in person or authorized representatives would have filed their power of attorney and ensured appearance from time to time.
7. Joining the issue learned counsel for the assessee submitted that the assessee dutifully sought adjournments from time to time since he was interested in pursuing the appeals. It was also submitted that the assessee paid costs, as awarded by the Bench, on two occasions and this also indicates that the assessee is interested in prosecuting the appeals. It was thus contended that there was a bonafide reason for non-appearance on the date fixed for hearing.
8. We have carefully considered the rival submissions and perused the record. Under proviso to Rule 24 of the Appellate Tribunal Rules the assessee has to show that there was sufficient cause for his non-appearance and only in the event of proving sufficient cause for non-appearance, ex-parte order passed by the Appellate Tribunal can be restored. It is, therefore, necessary to see as to whether reasons given by the assessee can be considered as sufficient cause for non-appearance. We have carefully gone through the submissions made by the counsel and find that the assessee could not prove sufficient cause for non-appearance on the date fixed for hearing. If Mr. Thankanchan/Shah/ Subramanian claims to be the authorized representatives they ought to have filed their respective power of attorney/authorization memo but no such authorization memo was available on record. The appeals were dismissed twice and on few occasions it was brought to the notice of the party that adjournments were being sought on spurious grounds. It also deserves to be noticed that assessee engaged M/s. Shah & Sanghvi, CAs which is evident from the fact that the said CAs have filed these appeals, along with their covering letter wherein it was stated that they were requested to file appeals on behalf of the assessee, which implies that they were the authorized representatives but even M/s. Shah & Sanghvi did not file the power of attorney. Though Mr. M. Subramanian appeared on number of occasions and was also successful in getting earlier ex-parte order recalled, fact remains that the power of attorney was not filed and it was filed only when it was verified and pointed out during the course of hearing of the present Miscellaneous Applications which also indicates that the assessee as well as his counsels have done lackluster attempt to represent the matters by not fulfilling all the criterion necessary to represent the matter before the Tribunal, in time. Under these circumstances, we are of the firm opinion that explanation of the assessee for non-appearance does not deserve to be accepted. We therefore dismiss the present Miscellaneous Applications.
Order pronounced on 20th Day of September, 2013.
