In High Court of Judicature at Madras Dated : 13.8.2019 Coram : Honourable Mr.Justice T.S.SIVAGNANAM and Honourable Mrs.Justice V.BHAVANI SUBBAROYAN Tax Case Appeal No.1021 of 2009 M/s.Universal Cold Storage Ltd., Chennai-41. Appellant Vs Deputy Commissioner of Income Tax, Company Circle III(3), Chennai-34. ...Respondent APPEAL under Section 260A of Income Tax Act, 1961 against order dated 29.8.2008 made in MP.No.176/Mds/2008 in ITA.No.1725/Mds/ 2004 on file of Income Tax Appellate Tribunal, Chennai 'B' Bench for assessment year 2000-01. For Appellant: Mr.A.S.Sriraman For Respondent: Mrs.S.Premalatha for Mr.M.Swaminathan Judgment was delivered by T.S.Sivagnanam,J We have elaborately heard Mr.A.S.Sriraman, learned counsel for appellant assessee and Mrs.S.Premalatha, learned Junior Standing Counsel appearing on behalf of Mr.M.Swaminathan, learned Senior Standing Counsel 1/6 TCA.No.1021 of 2009 appearing for respondent Revenue. 2. This appeal, filed by assessee under Section 260A of Income Tax Act, 1961 (for short, Act), is directed against order dated 29.8.2008 made in MP.No.176/Mds/2008 in ITA.No.1725/Mds/2004 on file of Income Tax Appellate Tribunal, Chennai 'B' Bench (for brevity, Tribunal) for assessment year 2000-01. 3. appeal was admitted on 08.12.2009 following substantial questions of law : i. Whether Appellate Tribunal is correct in law in dismissing miscellaneous petition filed in terms of Section 254(2) of Act for recall of ex parte order passsed in disposal of appeal filed before them ? And ii. Whether Appellate Tribunal is correct in law in dismissing miscellaneous petition in terms of Section 254(2) of Act for recall of ex parte order overlooking provisions of Rule 25 of Appellate Tribunal Rules, 1963 as well as overlooking reasons given for adjournment of hearing of appeal filed before them ? 4. assessee is before us challenging order passed in miscellaneous petition filed by assessee to recall order passed by Tribunal dated 22.2.2006. appeal was filed before Tribunal challenging order passed by Commissioner of Income Tax (Appeals)- 2/6 http://www.judis.nic.in TCA.No.1021 of 2009 III, Chennai-34 [for short, CIT(A)] dated 16.3.2004 whereby appeal filed by assessee was allowed. 5. It appears that appeal was listed before Tribunal on 17.2.2006, which was stated to be first date of hearing. On that day, petition for adjournment was filed by learned counsel for assessee. In said petition for adjournment, it has been stated that counsel had received instructions from assessee to represent matter and requested for adjournment, as assessee was not in position to furnish appeal records. It has been further stated in said miscellaneous petition that as against order passed by CIT(A), assessee also filed appeal and request was made to Tribunal to take up both appeals. assessee further pleaded that inconvenience caused to Tribunal might be regretted. 6. Tribunal proceeded on basis that there was no appearance for assessee and allowed appeal filed by Revenue. To recall order passed by Tribunal dated 22.2.2006, assessee filed miscellaneous petition on 03.7.2008 and it was rejected by Tribunal by impugned order on ground that assessee was not able to point out any mistake in said order. 7. In our considered view, no litigant would stand benefited by not appearing before court or tribunal or belatedly appearing before court or tribunal. Therefore, Courts have held that bona fides of parties 3/6 http://www.judis.nic.in TCA.No.1021 of 2009 should be examined before tough decision is taken. assessee's appeal was partly allowed by CIT(A). Tribunal, while recording that none appeared for assessee, had not referred to petition for adjournment filed by assessee's counsel and proceeded to allow Revenue's appeal by placing reliance on decision of Hon'ble Supreme Court in case of IPCA Laboratories Vs. DCIT [reported in 266 ITR 521]. 8. assessee's case is that said decision will have no application to facts of assessee's case. 9. In any event, in our considered view, 17.2.2006 being first date of hearing, Tribunal could have accommodated request made on behalf of assessee. 10. It is brought to our notice that issue before Tribunal was recurrent issue and that assessee succeeded for earlier years. 11. In light of above, we find that appeal before Tribunal should be heard on merits, for which reason, above tax case appeal is allowed. We set aside order dated 29.6.2008 made in MP.No.176/Mds/ 2008 in ITA.No.1725/Mds/2004 and direct Tribunal to take up miscellaneous petition and consider case of assessee so that order dated 22.2.2006 could be recalled and appeal could be heard on merits. This direction is issued as we are conscious of fact that assessee did not impugn order passed by Tribunal dated 22.2.2006. Had that been done, we would have been well justified in invoking our 4/6 http://www.judis.nic.in TCA.No.1021 of 2009 jurisdiction to set aside ex parte order and remit matter for fresh consideration. In absence of specific challenge to order dated 22.2.2006, we direct Tribunal to entertain miscellaneous petition and re-hear main matter on merits. substantial questions of law are left open. No costs. 13.8.2019 Internet: Yes To 1.The Income Tax Appellate Tribunal, Chennai 'B' Bench. 2.The Deputy Commissioner of Income Tax, Company Circle III(3), Chennai-34. RS 5/6 TCA.No.1021 of 2009 T.S.SIVAGNANAM,J AND V.BHAVANI SUBBAROYAN,J RS TCA.No.1021 of 2009 13.8.2019 6/6 Universal Cold Storage Ltd. v. Deputy Commissioner of Income-tax, Company Circle-III(3), Chennai