2002 (3) TMI 36 - HC - Income Tax

Court grants application to recall dismissal order for appeal, emphasizing sufficient cause for non-appearance

The court allowed the application under Order 41, rule 19 to recall an order dismissing an appeal in limine due to the appellant's absence at the hearing. ... - Issues:1. Application for recalling an order dated July 11, 2001, passed by the court in I.T.A. No. 24 of 2001.2. Allegations of the appellant's counsel having to leave for Maheswar on July 6, 2001, and not being able to return for the hearing on July 9, 2001.3. Interpretation of the provisions of Order 41, rule 19 of the Civil Procedure Code in relation to the dismissal of the appeal in limine.4. Consideration of whether the impugned order was passed in default of the appellant's appearance and the applicability of Order 41, rule 19 for recalling the order.5. Analysis of the legal position regarding the dismissal of suits or appeals on merits when the party does not appear for the hearing.6. Determination of whether a sufficient cause was demonstrated to empower the court to recall the impugned order.Analysis:The judgment pertains to an application made under Order 41, rule 19, read with Order 47, rule 1, of the Civil Procedure Code seeking the recalling of an order dated July 11, 2001, passed in I.T.A. No. 24 of 2001. The applicant, who was the appellant in the said appeal, was absent during the hearing on July 9, 2001, leading to the dismissal of the appeal in limine on July 11, 2001. The application was based on the appellant's counsel having to attend to ailing relative in Maheswar, preventing his appearance for the hearing. The court considered the provisions of section 260A(7) of the Income-tax Act, making Civil Procedure Code provisions applicable to appeals under section 260A, thereby allowing the application under Order 41, rule 19 for recalling the order.The court acknowledged the counsel's affidavit supporting the cause for non-appearance and accepted that a sufficient cause existed within the meaning of Order 41, rule 19, justifying the recall of the impugned order. It was emphasized that the dismissal of an appeal on merits does not preclude the appellant from seeking restoration, especially when the order was passed in default of appearance. The judgment highlighted the distinction between orders passed on merits and those passed in default, emphasizing the right of the appellant to invoke Order 41, rule 19 in case of non-appearance. The court clarified that the right conferred by the Legislature cannot be negated by court orders, underscoring the importance of demonstrating a good or sufficient cause to recall orders passed in default.The court specifically mentioned that the order was recalled solely under the provisions of Order 41, rule 19, without entertaining any grounds under Order 47, rule 1 of the Civil Procedure Code. Consequently, the impugned order dated July 11, 2001, was recalled, and the appeal, I.T.A. No. 24 of 2001, was restored for admission before the appropriate Bench hearing such appeals. The judgment provided a detailed analysis of the legal principles governing the recall of orders passed in default of appearance, ensuring the appellant's right to seek restoration based on sufficient cause demonstrated.