H L KARWA N K SAINI JJ Amit Shukla and Rakesh Garg for the Applicant P K Bajaj and Anadi Verma for the Respondent ORDER H L Karwa Vice President ndash These Miscellaneous Applications by different assessees arise out of the different orders of the Tribunal passed in above appeals By means of these Miscellaneous Applications the assessees sought setting aside of ex parte orders passed in above appeals and recall of the appeals for hearing on merits While disposing of the above appeals the Tribunal passed identical orders in one set of appeals i e I T A No 575 Luc 2005 ITA No 576 Luc 2005 ITA No l49 Luc 2006 ITA No 262 Alld 1999 and ITA No 646 Luc 2005 and in remaining appeals the Tribunal has passed almost similar orders For the sake of convenience we will reproduce the order from ITA Nos 575 Luc 2005 and 576 Luc 2005 which reads as under Both these appeals of the assessee are directed against the order of CIT A Agra dated 17 5 2005 relating to assessment years 1998 99 and 1999 2000 2 The above noted cases were fixed for hearing on 30 10 2007 Nobody appeared on behalf of the assessee when the case was called for hearing Earlier the cases were fixed for hearing on severed times but at the assessee s request the same were adjourned There was also no communication or information as to why assessee remained absent on the above etc It seems that assessee is not interested to pursue the matter The laws aid those who are vigilant not those who sleep upon their rights This principle is embodied in well known dictum vigilantibus non dormientibus jura subveniunt Considering the facts and keeping in view the provisions or rule 19 2 of the Appellate Tribunal Rules as were considered in 38 ITD 320 Del in the case of CIT v Multiplan India Ltd we treat these appeals as un admitted 3 In the result the appeals of the assessee are dismissed Sd Sd H L Karwa D C Agrawal Judicial Member Accountant Member Dated 30th October 2007 In remaining appeals the Tribunal has passed the similar orders and we reproduce the order from I T A No 435 Luc 2007 which reads as under This is an appeal filed by the assessee against the order of Assessing Officer passed under section 158BC In this case Shri Amit Shukla Advocate has applied for adjournment on the ground that senior Counsel Shri S K Garg is unable to come to Lucknow as he is tied up High Court and touring Bench at ITAT Allahabad 2 On the other hand Shri R C Sharma learned CIT DR submitted that the adjournment application filed by the learned Advocate is on false pretext In fact learned counsel is not appearing in this Bench on count of strike organized by him and some other advocates Learned D R submitted that counsel is resorting to collective absenteeism and they are all causing harm to public interest This cannot be a good ground for adjournment Learned D R referred to the decision of Hon ble Supreme Court in Ramon Services P Ltd v Subhash Kapoor 2000 113 Taxman 676 for the proposition that when an Advocate engaged by a party goes on strike there is no obligation on the part of the court either to wait or to adjourn the case on that account Time and again Hon ble Supreme Court has said that an Advocate has no right to stall the court proceedings on the ground that Advocates have decided to strike or to boycott the courts or even boycott any particular court Learned D R pointed out that the learned Counsel is not appearing in a particular constitution otherwise he is appearing in other constitution Therefore ground given for adjournment cannot be called to be a valid reason 4 We have considered the submissions of Learned D R We notice that Shri Amit Shukla Advocate was present in the premises of the Tribunal and he appeared before B Bench of this Tribunal in I T A No 415 Luc 07 Department v ACME Pump and Power Products Lucknow A power of attorney is also given in the name of Shri Amit Shukla He did not consider it necessary to appear personally in the Bench for seeking adjournment giving clear indication that he has not appeared before this Bench on account of collective absenteeism before a particular constitution 4 Even otherwise we notice that in the present case the appeal was filed on 30 6 2005 The appeal is very old On 7 9 2000 also none appeared on behalf of the assessee On 1 6 2006 adjournment was sought by learned counsel Similar adjournment was sought by learned Counsel for the assessee on 6 12 2006 and 15 10 2007 In between adjournments were also done at the request of D R At present application for adjournment was filed by Shri Amit Shukla who was present in other constitution indicates that the learned Counsel for the assessee is resorting to collective anbsenteeism on account of strike call given by them vide their letter dated 22 10 2007 We accordingly do not hold the reason for adjournment justified and reject the application The appeal is dismissed for want of prosecution 5 In the result the appeal of the assessee is dismissed 6 Order is pronounced in the open court on 19 11 2007 Sd Sd H L Karwa D C Agrawal Judicial Member Accountant Member Dated 22 11 2007 2 The facts and the pleas taken by the assessees in all the Miscellaneous Applications are similar and for the sake of convenience we reproduce the contents of M A No 34 Luc 2008 arising out of ITA No 435 Luc 2007 order dated 22 11 2007 Sir The above named assessee appellant most respectfully begs to submit and showeth as under 2 For conducting the aforesaid appeal wherein substantial issue was involved the assessee appellant had engaged a senior counsel Sri S K Garg who had even attended the case on several dates However owing to the call for absenteeism given by the members of various Bars and for other unavoidable reasons he was not available to conduct the appeal on 22 11 2007 3 The assessee was handicapped in making alternate arrangement as no counsel was prepared to accept the brief on such a short notice and the call for absenteeism given by the members of Bar made the task absolutely impossible 4 From the narration given above it may very kindly be seen that the assessee was prevented by reasonable and sufficient cause in attending to the said proceedings on the appointed date It is therefore just and expedient that the ex parte order is called under rule 24 of the Income tax Appellate Tribunal Rules 1963 so that the appeal may be restored and decided on merits thereto Prayer In view of the submissions made above it is respectfully prayed that your honour be pleased a to recall the ex parte order dated 22 11 2007 passed in ITA No 435 Luc 2004 for the Block Period b to restore the said appeal for being heard and decided afresh in accordance with the provisions of law and c to grant such other relief as is found admissible under law and equity 10 A copy of the above referred order dated 22 11 2007 passed by the Hon ble IT AT is enclosed and the same has been marked as Annexure I hereto 11 Filing fee amounting to Rs 50 has been deposited vide Challan No Receipted copy of the said Challan in original is enclosed and the same has been marked as Annexure II hereto Yours faithfully Sd Satnam Singh Chhabra Encls As stated above Dated January 2008 3 From the above it is clear that the Tribunal dismissed the appeal of the assessee vide order dated 22 11 2007 for want of prosecution The Tribunal observed that the ld Counsel for the assessee is resorting to collective absenteeism on account of strike call given by them vide their letter dated 22 10 2007 4 Before us Shri Rakesh Garg Advocate and Shri Amit Shukla Advocate appeared on behalf of different assessees Both the Counsels advanced similar arguments It was stated by them that as per the above referred Miscellaneous Applications the concerned assessees applicants have pleaded for recall of the ex parte orders passed by the Hon ble Bench precisely on the ground that each one of them was prevented by sufficient cause from prosecuting the appeals as above The cause given is that the assessees applicants had engaged Shri S K Garg Advocate and Shri Rakesh Garg Advocate for conducting the cases However due to call for absenteeism given by the members of various Bars of Lucknow Kanpur Bareilly and Allahabad and also for other unavoidable reasons the Counsels could not become available to conduct the appeals on the dates fixed for hearing In such situation the assessees applicants could not make alternative arrangement also as no Counsel was available to accept the brief It was also submitted that the Tribunal had inherent judicial power to set aside the ex parte order and making fresh opportunity of being heard to the party In view of the above it was submitted that the orders passed in above appeals may be set aside and the appeals be restored for hearing on merits 5 Shri Anadi Verma Sr D R vide letter dated 24 9 2009 and Shri P K Bajaj Sr D R vide letter dated 6 1 2011 filed detailed Written Submissions on behalf of the revenue For the sake of convenience we reproduce the same in verbatim as under May it Please your Honours The right of work as a human right is provided for in several international documents Though not expressly stated it was implicit in the two basic texts of the International Labour Organisation ILO namely the Constitution of 1919 and the Declaration of Philadelphia of 1944 The right to work is included in the Universal Declaration of Human Rights 1948 and the International Covenant on Economics Social and Cultural Rights 1966 The right not to work could be comprehended as right to strike The word strike has been defined under section 2 q of the Industrial Disputes Act 1947 Strike is the act of stopping work by a body of workmen for the purpose of coercing their employer to accede to some demands they have made upon him A perusal of various provisions of the Industrial Disputes Act 1947 would reveal that workers have no absolute right to go on strike Section 22 of the Industrial Disputes Act 1947 lays down circumstances in which strike in public utility services is prohibited Under section 23 there are restrictions imposed on workmen from going on strike in the circumstances enumerated therein If we look into the provisions of the Advocates Act and the Legal Practitioners Act it become evident that the position of advocates is quite different from an employee A Code of Ethics for the legal profession in India was framed as early as 1962 It details the duties of advocates Bar Council of India has also framed rules in exercise of its rule making power under the Advocates Act 1961 Chapter II of Part VI of these Rules Governing Advocates prescribe standards of professional conduct and etiquette for lawyers The Preamble to these Rules states the duties and obligations of lawyers in general terms Rules I and II of Chapter II of the rules lay down standards of professional conduct and etiquette and duties to the client and to the Court Rule 12 provides that an advocate shall not withdraw from engagements once accepted without sufficient cause and unless reasonable and sufficient notice is given to the client Rule 15 provides that it shall be the duty of an advocate freely to uphold the interest of his client by all fair and honourable means without regard to any unpleasant consequence to himself or to any other Rule 24 lays down that an advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client The rights and privileges of an advocate carry with them the corresponding duty not to abuse them Thus when an advocate accepts a brief it is his bounden duty to attend to his client s interest with due diligence and if he fails to do so he is likely to be dealt with for neglect and is also answerable to the client If he is unable to attend when the case is called he is bound to make some other arrangements for the proper representation of his client or the brief should be returned in good time In short the advocates owe a duty not only to their clients but also to the court and are bound to co operate with the court in the orderly administration of justice Amongst various duties required to be discharged by the lawyers one of the duties to the court is that an advocate shall maintain towards the court a respectful attitude bearing in mind that the dignity of the judicial office is essential for the survival of an independent judiciary and thus of constitutional Government When we consider the role of lawyers in the administration of justice we ought to remember that the profession of law is not a mere trade or business It is a vocation to be pursued to meet the challenge of times There is much more in the profession than a traditional dignified calling In fact the term lawyers refers to a group of men pursing a learned art as a common calling in the spirit of public service Pursuit of learned art in the sprit of a public service is the primary purpose In ensuring the rule of law a most significant part is played by the lawyers It is said that Judges most often shine with the reflected glory of lawyers In this view it is difficult to concede a right to boycott courts to the lawyers on the analogy of conceding right to strike of employees Moreover the right to strike work in India is admittedly not absolute This is so in the industrial sector as well as in public service sector The members of the Bar Association thus have no right to boycott courts in view of the duties which they are required to discharge It is true that under the Constitution of India freedom of association is guaranteed as a fundamental right but this right is subject to reasonable restriction in the interest of public order or morality The prohibition against strikes by lawyers is inbuilt in the Advocates Act 1961 The duties to the court and duties to the clients prescribed by Bar Council of India go to prove that strike or boycotting of courts is antithesis to practice in the court and is a professional misconduct An advocate being an officer of the court and thus bound to submit to its authority cannot join in an action to boycott the court or a particular judge because of any grievance real or alleged In this context it would be worthwhile to examine the judicial decisions on the issue In Emperor v Rajani Kanta Bose ILR 1922 Cal 515 followed in Atul Chunder v Lakshamn Chunder 1909 36 Cal 609 9 IC 830 13 CWN 1172 This principle has been recognized for more than half a century as is clear from section 18 of Act VII of 1859 and section 39 of Act X of 1877 and Act XIV of 1882 which were applied in the cases of King v King 1882 6 Bom 416 and Watkins v Fox 1895 22 Cal 943 A Special Bench of the Calcutta High Court consisting of three Judge opined that a pleader being an officer of the court is bound to submit to its authority and thus cannot join any action to boycott the court or a particular judge because of any grievance real or alleged whether touching the court or of political or other character The pleader accepting the vakalatnama cannot divest himself of his duties arising from such acceptance without leave of the court If he desires to discharge himself from a case he must give his client reasonable notice of his intention It is not difficult to realize that serious uncertainties and inconveniences might arise in the conduct of judicial proceedings if the appointment of a pleader made in writing and lodged in the court where the case was to be tried could be revoked without the knowledge and sanction of the Court If the practitioner wants to withdrawn he must always give reasonable notice of his withdrawal from the case to his client Hoby v Built 1832 3 B and Ad 350 1 LJKB 121 110 ER 131 Harris v Osburn 1834 2 Cr And M 629 4 Tyr 445 149 ER 912 Nicolls v Wison 1843 11 M and W 106 12 L J Ex 26 152 ER 734 Whitehead v Lord 1852 7 Ex 691 21 L J Ex 239 19 L T 113 155 ER 1126 Taking the same line of arguments the Hon ble Supreme Court also observed that absenting from courts on a particular day in pursuance of a concerted movement on the part of the lawyers to boycott a court amounts to professional misconduct Lt Col S J Chaudhary v State Delhi Admn 1984 1 SCC 722 The Supreme Courts has also observed that it is the duty of every advocate who accepts the brief in a criminal case to attend the trial from day to day Having accepted the brief he will be committing a breach of his professional duty if he so fails to attend This view of the Hon ble Supreme Court is in consonance with the views of the Indian Judiciary for the last several decades The Hon ble Calcutta High Court adopted this view as early as 1923 in Traini Mohan Barar case AIR 1923 Cal 242 In that case a decision to boycott the court was in issue A resolution was passed by the Bar Association not to appear before the Fourth Subordinate Judge in view of the fact that insult inflicted on Pleader Shri Babu Rabindra Nath Chatterjee was an insult to the whole Bar It was in consequence of the resolution that the pleaders refused to appear before the Subordinate Judge The High Court ruled The pleader has duties and obligations to their clients in respect of the suits and matters entrusted to them which were pending in the Court of the learned Subordinate Judge There was further and equally important duty and obligation upon them viz to co operate with the Court in the ordinary and pure administration of justice By the course which they have adopted the pleaders isolated and neglected their duty and obligation in both these respect We desire to make it clear that such conduct cannot and will not be tolerated In this case if the pleaders thought they had a just cause of complaint they had two courses open to them either to make a representation to the learned District Judge or to the High Court They took neither of these alternatives but they adopted the highhanded and unjustifiable course of boycott the learned Subordinate Judge in Court The same view was expressed by the Punjab and Haryana High Court in Maharaj Baksh Singh S Maharaj Baksh Singh v Charan Kaur AIR 1987 Punj and Har 213 The Court observed Counsel abstaining from appearing in Court cannot therefore but be construed as being contrary to the manner and norms of this great and noble profession Law as Justice Holmes so aptly put it is a calling of thinkers The weapon of the Bar has thus always been reason and reason is never of more telling effect than when expressed with dignity wrapped in humility A Division Bench of the same High Court has in Rajinder Singh v Union of India 1993 2 SLR 450 observed What legal sanction the Association of Lawyers has to give call to the lawyers to go on strike is beyond our comprehension The fear in the lawyers as is being projected by Mr Saini not to argue the case of being punished by the Association to go on strike or in other words to abstain from appearing in Court has no legal basis The functioning of the Courts in the matter of administration of justice is not to be regulated or controlled by the Association of lawyers in the manner of giving calls to its members to go on strike and not to appear in Courts in their cases which is not legal when such association of lawyers have no arrangement for providing work judicial work to its members for their livelihood how such calls are given for strike by such association Further comments can only be given as and when action of any Association in imposing penalty on a lawyer is challenged in any Court If the position is examined from a different angle the result would be alarming The primary function of the Courts would be failing in their duties in not performing such a function merely on the ground that lawyers choose to abstain from appearing in Courts The Judge are supposed to train themselves to decide cases by studying the pleas and the law on the subject even if unaided either by the parties or their counsel There is no legal impediment in the way of the Court not to administer justice when lawyers abstain from appearing in Courts or they appear but refuse to assist the Court in the administration of justice Code of Civil Procedure contains provisions for proceeding with cases where parties fail to appear Thus the courts are unanimous in their verdict that deliberately absenting from court is unprofessional and unethical and there is no legal basis behind the strike commenced pursuant to the passing of resolution by the Bar Association when such association of lawyers have no arrangement for providing work to its members for their livelihood If we examine the legal implication of a lawyer s accepting a brief we find an advocate does certainly undertake a duty on his client s behalf but by accepting the brief he enters into a contract express or implied with his client He is deemed to have taken on himself a duty in the proper discharge of which not only the client but the court and the public at large have an interest Lawyers have extensive discretion as to the mode of conducting the case for his client Various provision of the Advocates Act 1961 make it evident that an advocate is not an agent or power of attorney holder The jural relationship between him and his client is not founded so much on a contract as from his status His status is above a servant or an agent Me holds a position of trust and even above it As members of the Bar lawyers no doubt have their importance and role in the society and therefore cannot be expected to stand mute to the events around them but as right thinking members of the society they cannot be expected to countenance any action on their part which could in any manner compromise their duty to the court and responsibility they bear towards those they have undertaken to represent The members of the Bar are required to assert their just rights to be heard without failings in respect to the Bench They should be fearless and independent in the discharge of their duties And in case if the advocate himself is improperly dealt with he should vindicate the independence of the Bar Above submissions from pages 1 to 7 are extracted from an article by Hon ble Justice Pana Chand Jain Retd His contribution is gratefully acknowledged One of the other leading authorities on the issue under question is the judgment rendered by the Hon ble Supreme Court reported in 113 Taxman 676 The facts of the case set out in para 3 of the said judgment also reported in 2001 1 SCC 118 read as under The appellant Company was in occupation of a building as tenant at Barakhamba Road New Delhi A suit was filed against the appellant for eviction from the building and other consequential reliefs which was resisted by the appellant by raising various contentions Issues in the suit were framed by the court and the case was posted to 26 8 1998 for trial None of the advocates belonging to the firm of lawyers which was engaged by the appellant appeared in the court on the day because the advocates were on a strike called by the advocates association concerned As nobody for the appellant was present the court set the defendant ex parte and evidence of the plaintiff was recorded The appellant whose place of business was in Mumbai on coming to know of the developments applied under Order 9 rule 7 of the Code of Civil Procedure for short the Code But the application was dismissed and eventually the suit was decreed on 13 11 1998 Therefore the appellant filed an application to set aside the ex parte decree The said application was dismissed by the trial court for which the following reasoning inter alia has been stated It is settled law that strike or boycott by the advocates is no ground for adjournment Hon ble Supreme Court in Mahabir Prasad Singh v Jacks Aviation P Ltd 1999 1 SCC 37 has held that all the courts have to do judicial business during court hours It is the solemn duty of every lawyer to attend the court The defendant and the counsel very well know that the case was fixed on 26 8 1998 for plaintiffs evidence Counsel for the defendant at least 8 counsels had been engaged by the defendant and the defendant deliberately did not appear on 26 8 1998 There is no bona fide or reasonable ground put forward by the defendant or their counsel for non appearance They were knowing the consequence of non appearance I therefore find no ground in allowing the application under Order 9 Rule 16 CPC The application is hereby dismissed with costs The appellant therefore approached the High Court with an appeal against the aforesaid order The High Court concurred with the reasoning of the trial court and dismissed the appeal Learned Single Judge while dismissing the appeal stated thus In my considered opinion the proposition of law as laid down in the decision of the Supreme Court in Mahabir Prasad Singh case squarely applied to the facts of the present case There was negligence and total lack of bona fide on the part of the defendants and therefore they are not entitled to any relief in the present appeal The appeal stands dismissed as without any merit leaving the parties to bear their own costs Expressing its views on aforesaid facts the Hon ble Supreme Court observed in its judgment para 5 as under We have no doubt that the legal position adumbrated by the Additional District Judge as well as the High Court cannot be taken exception to When the advocate who was engaged by a party was on strike there is no obligation on the part of the court either to wait or to adjourn the case on that account Time and again this Court has said that an advocate has no right to stall the court proceedings on the ground that advocates have decided to strike or to boycott the courts or even boycott any particular court Vide U P Sales Tax Service Assn v Taxation Bar Assn 1995 5 SCC 716 K John Koshy v Dr Tarakeshwar Prasad Shaw 1998 8 SCC 624 Mahabir Prasad Singh v Jacks Aviation 1999 1 SCC 37 and Koluttumottil Razak v State of Kerala 2004 4 SCC 465 While concurring with Hon ble Thomas J the other Hon ble Judge of the Supreme Court Sethi J made observations germane to the issue under question before this Tribunal Generally strikes are anthiesis of progress prosperity and development Strikes by the professionals including the advocates cannot be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions The services rendered by the advocates to their clients are regulated by a contract between the two besides statutory limitations restrictions and guidelines incorporated in the Advocates Act the rules made thereunder and rules of procedure adopted by the Supreme Court and the High Courts Abstaining from the courts by advocates by and large does not only affect the persons belonging to the legal profession but also hampers the process of justice the litigants Legal profession is essentially a service oriented profession The relationship between the lawyer and his client is one of trust and confidence In Pandurang Dattatraya Khandekar v Bar Council of Maharashtra 1984 2 SCC 556 1984 SCC Cri 335 it was observed that SCC Headnote An advocate stands in a loco parentis towards the litigants Therefore he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust Counsel s paramount duty is to the client The client is entitled to receive disinterrted sincere and honest treatment It would be against professional etiquette of a lawyer to deprive his client of his service in the court on account of strike No advocate can take it for granted that he will appear in the court according to his whim or convenience It would be against professional ethics for a lawyer to abstain from the court when the cause of his client is called for hearing or further proceedings In Brahma Prakash Sharma v State of U P AIR 1954 SC 10 1954 Cri LJ 238 1953 SCR 1169 a Constitution Bench of the Hon ble Supreme Court held that a resolution passed by the Bar Association expressing want of confidence in the judicial officers amounted to scandalizing the court to undermine its authority which amounted to contempt of court In Traini Mohan Barari Re AIR 1923 Cal 312 the Full Bench of the Hon ble High Court held that that pleaders deliberately abstaining from attending the court and taking part in a concerted movement to boycott the court was a course of conduct held not justified The pleaders had duties and obligations to their clients in respect of matters entrusted to them which were pending in the courts They had duty and obligation to co operate with the in the orderly administration of justice Boycotting the court was held to be high handed and unjustified In Pleader Re AIR 1924 Rang 320 a Division Bench of the High Court held that a pleader abstaining from appearing in the court without obtaining his client s consent and leaving him undefended amounted to unprofessional conduct In Mahabir Prasad Singh v Jacks Aviation P Ltd it was observed SCC p 40 para 2 2 Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology whether it is by litigants or by counsel Judicial process must run its even course unbridled by any boycott call of the Bar or tactics of filibuster adopted by any member thereof High Courts are duty bound to insulate judicial functionaries within their territory from being demoralized due to such onslaughts by giving full protection to them to discharge their duties without fear But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted through legal means a pressure strategy slammed on him in open court It was further held SCC pp 43 44 paras 16 18 16 If any counsel does not want to appear in a particular court that too for justifiable reasons professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel But retaining the brief of his client and at the same time abstaining from appearing in that court that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature is unprofessional as also unbecoming of the status of an advocate No court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court It is the solemn duty of every court to proceed with the judicial business during court hours No court should yield to pressure tactics or boycott calls or any kind of browbeating A three Judge Bench of Hon ble Supreme Court has reminded members of the legal profession in Lt Col S J Chaudhary v State Delhi Admn 1984 1 SCC 722 1984 SCC Cri 163 that it is the duty of every advocate who accepts a brief to attend the trial and such duty cannot be overstressed It was further reminded that having accepted the brief he well be committing a breach of his professional duty if he so fails to attend A lawyer is under obligation to do nothing that shall detract from the dignity of the court of which he is himself a sworn officer and assistant He should at all times pay deferential respect to the Judge and scrupulously observe the decorum of the courtroom Warvelle s Legal Ethics at p 182 In the light of the consistent views of the judiciary regarding the strike by the advocates no leniency can be shown to the defaulting party and if the circumstances warrant to put such party back in the position as it existed before the strike In that event the adversary is entitled to be paid exemplary costs The litigant suffering costs has a right to be compensated by his defaulting counsel for the costs paid In appropriate cases the court itself can pass effective orders for dispensation of justice with the object of inspiring confidence of the common man in the effectiveness of judicial system In the instant case the respondent has to be held entitled to the payment of costs consequent upon the setting aside of the ex parte order passed in his favour Though a matter of regret so held by the Hon ble Supreme Court yet it is a fact that the courts in the country have been contributory to the continuance of the strikes on account of their action of sympathizing with the Bar and failing to discharge their legal obligation obviously under the threat of public frenzy and harassment by the striking advocates The Hon ble Court found itself in agreement with the submission of Shri M N Krishnamani Senior Advocate that the courts were sympathizing with the Bar by not agreeing to dismiss the cases for default of appearance of the Striking advocates The Hon ble Judge expressed reservations with the observations of Thomas J that the courts had not been sympathizing with the Bar during the strikes or boycotts Some courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the courts in the country have been impliedly sympathizers by not rising to the occasion by taking a positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary The Hon ble Judge wrote further that it is not too late even now for the courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singh Case Inaction will surely contribute to the erosion of ethics and values in the legal profession The defaulting courts may also be contributory to the contempt of the Hon ble Supreme Court it was so held It is argued that in the abovesaid case of Hon ble Supreme Court there was no direction to sustain the ex parte order Hence pleading rule 24 of Appellate Tribunal Rules it is argued that the ex parte decree cannot be sustained It is to be remembered that in the aforesaid case substantial cost was awarded against the appellant Secondly an ex parte judgment being recalled in legal framework outlined earlier would amount to allowing of the miscellaneous application That the ex parte judgment can be sustained in itself even if ruling in Multiplan India Ltd is ignored we have got enough indications of Secondly adherence to the said Rule cannot be at the cost of law as laid down and interpreted by the Hon ble Supreme Court above A rule does not exist in vacuum it is an aid to functioning It is formalization of procedure It cannot create a situation where by adherence to it would be in contravention of law laid down The basic proposition of ITAT passing orders as it deemed fit laid down in section 254 1 cannot be curtailed by bounds apparently created by a unduly formalistic interpretation of rule 24 Besides the factual matrix of prior intimation to client and attempt to reach court by one of lawyer of the lawyer firm under question as detailed in para 8 of the Supreme Court judgment in Ramon Service case is not on all fours with factual situation in our case Hence the leniency shown on that count cannot obtain here since that particular aspect of the case is absent here Prayer As per rule 24 of the Appellate Tribunal Rules the Tribunal is authorized to dispose off the appeal on merits after hearing the respondent where the appellant does not appear If the respondent does not appear similar provision exists in rule 25 But these rules are subject to section 254 1 The power of ITAT in dealing with appeals are expressed in the widest possible terms as held in 63 ITR 232 SC and are similar to the powers of an appellate court under the CPC 31 ITR 844 We are here confronted not with a usual situation but an extraordinary situation Drastic problems call for drastic measures Hence the Hon ble Tribunal is urged humbly to dismiss the M A If the Hon ble Tribunal does feel constrained to recall the order s concerned under rule 24 or 25 the recall may be made subject to such conditions and under such observations as are deemed in accordance with legal observations mentioned above esp by the Hon ble Apex Court and which uphold the sanctity and status of the Hon ble ITAT Submitted Sd Sr D Rs 5 1 Vide letter dated 21 1 2011 Shri Anadi Verma Sr D R submitted another set of Written Submissions For the sake of convenience we reproduce the same verbatim as under Sub Written Submission synopsis and final arguments mdash May it Please Your Honour In continuation of the earlier written submission filed in this miscellaneous application on 24 9 2009 the following submissions is made further 1 The appeals filed by the assessees relating to above said MAs have been dismissed in default either through the application of the judgment in the case of Multiplan India Ltd 38 ITD 320 Delhi or they have been decided in absence of the appellant and dismissed in default due to strike call for specific boycott of a particular Member Judge of the Tribunal These are admitted facts and on record and even in the MAs filed it has been admitted that the absence of the counsel was due to call of absenteeism given by Members of various Tribunal Bars 2 As desired by the Hon ble Bench synopsis of the submissions is made as under Application of rule 24 of Appellate Tribunal Rules 1963 Rule 24 of Appellate Tribunal Rules clearly provides that if the appellant does not appear either personally or through A R the Tribunal may dispose the appeal on merits after hearing the respondent The proviso to this rule says that Where an appeal has been disposed of as provided above and subsequently the appellant appears and provides sufficient cause for non appearance the ex parte order shall be set aside In the instant case this factual matrix is absent Here the appeal has not been disposed off on merits Therefore the main rule as well as proviso do not have any application It has been repeatedly pleaded that these MAs are to be restored under rule 24 proviso For example in MA Nos 11 and 12 it is clearly mentioned in the application of the assessee that it is under rule 24 of the Appellate Tribunal Rules This being so the mandate on the Hon ble Tribunal is confined to deciding whether this application under rule 24 is maintainable or not The Appellate Tribunal Rules are adjunct to the main provision of statute embodied in section 254 onwards of Income tax Act 1961 It is well established that if the language of the statute is plain and capable of one and only one meaning that obvious meaning is to be given to the said provision Rules of interpretation are applied only if there are ambiguities when the purpose of interpretation is to ascertain the intention of law i e mens legis To interpret rule 24 as being applicable even where the appeal is not decided on merits would be to resort to the doctrine of casus omissus This Latin word means literally the case omitted In the case of P N Khanna 266 ITR page 1 SC it has been held that casus omissus is not to be supplied except in the case of dire necessity This is so because it deals with a situation which is not provided for in statute In this regard page 9 para H and page 10 paras A and B of above judgment are strongly relied upon Further a five Judge Bench of Hon ble S C in the case of P Rao Decd v State of T N 2002 255 ITR 147 has ruled that Legislative casus omissus cannot be supplied by judicial interpretative process head note Strong reliance is placed on paras E to H of page 154 to paras A to F of page 155 In the case of Dharmendra Textiles Processors reported in 306 ITR 277 SC it has again been held that legislative casus omissus cannot be supplied by judicial interpretative process In this regard strong reliance is placed on para 22 to para 25 of the judgment occurring on pages 301 and 302 In the instant case the language of rule 24 is plain and it is clear that the case of the appellant does not fall under rule 24 How to construe ex parte order How then is the ex parte order to be construed It is clear that this order passed by the Hon ble Bench is an order within the confines of the very wide powers given to it under section 254 1 Section 254 1 says that the Appellate Tribunal may after giving both the parties to the appeal an opportunity of being heard pass such orders thereon as it thinks fit Opportunity was clearly provided to both the parties The revenue was present on the date of hearing The assessee through its AR deliberately chose not to present itself before the Bench for hearing Under these circumstances Tribunal passed an order as it thought fit to pass This order was dismissal in default It is clear that the order is under section 254 1 and within the four corners of law Is it covered under section 254 2 The argument of the assessee AR could be that in the order the grounds of appeal have not been adjudicated so it constitutes a mistake apparent from record Some MAs in fact are under section 254 2 This is a completely untenable argument because assessee chose not to present the grounds of appeal before the Bench and hence appeal has been dismissed in default This dismissal is adjudication of the grounds of appeal So it is incorrect to say that this case is a mistake apparent from record Apart from this if we look at the latest judicial rulings relating to section 254 2 we find that in the case of Saurashtra Kutch Stock Exchange Ltd 305 ITR 227 SC the Hon ble Court labels in para 37 such a mistake as patent manifest and self evident error which does not require elaborate discussion of evidence or arguments It is clear that no such error has been committed in the ex parte dismissal In the earlier judgment of Honda Siel Power Products Ltd reported in 165 Taxman 307 SC what is spoken of is manifest error The scope and import of section 254 2 has been classically defined in the case of Smt Santosh Jawa reported in 104 TTJ 518 Jaipur which has relied on the judgment of Hon ble Supreme Court in the case of 176 ITR 535 Hence the case of the assessee clearly does not fall under section 254 2 as well The emerging picture This legal position has to be appreciated in context of the peculiar facts of these cases For this a ready reference may kindly be made to the 15 pages written submission filed by the undersigned and referred to earlier The submission on pages 14 and 15 are of significance and may kindly be considered It is argued that judgment of Ramon Services did recall the ex parte order ultimately That judgment has been discussed in detail in the written submission earlier and may please be considered in terms of ratio decidendi laid down and punitive costs awarded and strictures passed The appreciation of principles laid down in a judgment are to be made in the context of the background facts of the case This concept has been discussed in detail in a recent judgment of Delhi High Court Full Bench in the case of Lachman Dass Bhatia Hingwala P Ltd reported in 49 DTR 2011 98 Delhi FB The scope of section 254 2 has also been discussed in this judgment It has been held that an order can be recalled in its Entirety if ITAT is satisfied that prejudice has resulted Attributable to Tribunal s mistake error or omission Is this the case here Covered matter In the last hearing judgment of Hon ble ITAT Jabalpur was submitted before the Hon ble Bench in the matter of Additional Director MPSEB v TRO This case was on the issue of strike by the Bar through boycott of a particular court In this case an application under section 254 2 of the assessee was dismissed ex parte in view of the strike by the Bar It has been argued that the legal aspects detailed in this judgment are pertaining to section 254 2 so not applicable here This is incorrect We have to appreciate facts resulting in the ratio of the judgment The ratio of the judgment is whether ex parte dismissal on account of non prosecution of appeal or application in view of strike by the Bar is correct or not The other aspect does not matter What matters is that this was an issue which related to the Advocates Act 1961 as well as context of dismissal of application The application was dismissed ex parte and the Bench declined to decide the case on merits This ratio is clearly applicable to the facts of the instant case and is a co ordinate Bench judgment Comments on compilation of case laws given by the assessee In the compilation of case laws 7 cases have been cited The first case is of Ramon Services Pvt Ltd which has been cited by the undersigned originally The second case cited is 294 ITR 401 This is pertaining to rules 19 20 and 24 Here no such plea as raised by the undersigned was considered or decided It did not pertain to deliberate non appearance Likewise judgment of R P Borah of 302 ITR is clearly distinguishable In the case of A K Agrahari 323 ITR the appeal was restored because adjournment application was rejected and written submission etc filed by the assessee was not considered In the instant case the factual matrices is completely different For example there is no written submission in cases of L H Sugar Likewise in MA numbers 13 24 62 Further for a paper book to be considered it has to be referred The judicial opinion is settled in this aspect In the case of S C Mudaliar 74 ITR as well as Shri Bhagwan Radha Kishan 22 ITR the case pertains to rule 24 of Appellate Tribunal Rules 1946 Rule 24 as it stood then specifically provided for dismissal in default and is clearly different from present rule where that provision stands omitted as is clear from page 29 of the paper book of assessee and hence completely inapplicable to Appellate Tribunal Rules 1963 The case of Prayag Udyog P Ltd 245 ITR was regarding recall of appeal dismissed due to defect in memorandum of appeal This is not the case here The case of Fagoomal Lakshi Chand 118 ITR was regarding disposal of CO ex parte following dismissal of appeal ex parte not due to deliberate abstinence And finally in the Mangilal case 1994 4 SCC 564 the matter was not restored back by H C itself against its order though it had specific power of recall The restoration was by Hon ble S C and that too on the ground that reasons for strike were adjudicated by the H C Also powers of H C and S C are not even comparable to those of ITAT The Tribunal is bound by confines of Appellate Tribunal Rules In none of these cases issue is pertaining to deliberate non appearance by the counsels except the last named which is distinguishable on facts Hence all these cases are distinguishable Further none of the MAs are backed by an affidavit under rule 10 of Appellate Tribunal Rules 1963 Hence the pleas thereon are ex parte statement of non sworn facts and deserve to be ignored The aspect of Multiplan applied cases or otherwise is of no significance since the MAs clearly indicate that non prosecution of appeal was due deliberate abstinence of appearance No reasonable cause thereof has been shown Prayer 1 The MAs should be dismissed as non maintainable in view of the legal position described in detail above since rule 24 does not apply Section 254 2 also does not apply 2 Alternatively if the above such prayer is not accepted and the Hon ble Bench feels compelled to recall the orders then it may subject to the approval of Hon ble Bench be subject to at least the following two conditions a Award of punitive and exemplary costs under rule 32A of the Appellate Tribunal Rules 1963 A minimum of Rs 50 000 per case should be imposed b The two detailed submissions given by the undersigned should be exhaustively discussed and made part of the order condemning the action of the appellant and also passing such suitable strictures in the matter as deemed fit by the Hon ble Bench so that the dignity of the esteemed institution of the Tribunal and decorum of a courtroom may never ever be violated by such patently unpardonable conduct unbecoming of an officer of the Court as honourable and esteemed members of the Bar undisputably are We must all not only profess but practice what we preach about the haloed stature of a justice dispensing institution Submitted Sd Anadi Verma Dated 21 1 2011 Sr DR I 6 In rejoinder Shri Amit Shukla Advocate ld Counsel for the assessee submitted that the ld S R D R opposed the above applications by referring to the decision of the Hon ble Apex Court In the case of Mahabir Prasad Singh v Jacs Aviation 1999 1 SCC 37 Crux of the said case as pointed out by the ld D R was that the action of the strike by the lawyers is condemnable and the same being an act of negligence and professional misconduct should not be treated as reasonable cause for setting aside the ex parte order The ld D R also submitted that rule 24 of the Income tax Appellate Tribunal Rules 1963 also is of no avail to the applications as the Tribunal has not decided the appeal on merits but dismissed the same in default Shri Amit Shukla ld Counsel for the assessee relied upon the decision of the Hon ble Apex Court in the case of Ramon Services P Ltd v Subhash Kapoor 2001 1 SCC 118 Dwelling upon the said judgment Shri Amit Shukla Advocate ld Counsel for the assessee pointed out that although in the said case the Hon ble Apex Court has condemned the strike of lawyers as negligence and professional misconduct at the same time their lordships were pleased to allow the appeals by setting aside the ex parte order after imposing the cost Shri Amit Shukla Advocate ld Counsel for the assessee invited our attention to the following paragraph of the said judgment 7 In view of the aforesaid stand of the appellant we passed the following order on 8 5 2000 mdash We tentatively propose to set aside the ex parte judgment on some terms like payment of costs to the other side because petitioner s counsel was absent in the trial court when the case was called as he was participating in the lawyers strike But it is difficult for us to mulct the petitioner with the cost portion as he is innocent Hence we issue notice to M s Das Gupta and Co Lawyers of Delhi to show cause why the petitioner shall not be permitted to realize the said cost amount from the said advocates 10 But the fact remains that the appellant was set ex parte due to the absence of the appellant and his counsel in the court when the case was taken up for hearing In the Special circumstances of this case we are inclined to set aside the ex parte order dated 26 8 1998 on some terms 15 Therefore we permit the appellant to realize half of the said amount of Rs 5 000 from the firm of advocates M s B C Das Gupta and Co or from any one of its partners Initially we thought that the appellant could be permitted to realize the whole amount from the said firm of advocates However we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non appearance was solely on the ground of a strike call It is unjust and inequitable to cause the party alone to suffer for the self imposed dereliction of his advocate We may further add that the litigant who suffers entirely on account of his advocate s non appearance in court has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case Even so in situations like this when the Court mulcts the party with costs for the failure of his advocate to appear we make it clear that the same court has power to permit the party to realize the costs from the advocate concerned However such direction can be passed only after affording an opportunity to the advocate If he has any justifiable cause the court can certainly absolve him from such a liability But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and canons of ethics So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be said in the hands of that advocate 16 In all cases where the Court is satisfied that the ex parte order passed due to the absence of the advocate pursuant to any strike call could be set aside on terms the court can as well permit the party to realize the costs from the advocate concerned without driving such party to initiate another legal action against the advocate In view of the above decision of the Hon ble Supreme Court in the case of Ramon Services P Ltd supra it was submitted on behalf of the applicants that the ex parte orders passed in above appeals may pleased be recalled after setting aside the orders 6 1 Shri Amit Shukla Advocate ld Counsel for the assessee also submitted that strike by the Advocates or the reason for strike is not an issue before the Tribunal On the other hand the issue is as to whether the applicants should be allowed to suffer on account of call for strike given by the Advocates and Chartered Accountants Shri Amit Shukla Advocate pointed out that in the case of Ramon Services P Ltd supra the Hon ble Apex Court itself has held that whatever may be the punishment given to the striking lawyers the litigants should not suffer because of such strike the ex parte order should be recalled He also relied on the decision of the Hon ble Apex Court in the case of Mangi Lal v State of Madhya Pradesh 1994 4 SCC 564 Shri Amit Shukla Advocate ld Counsel for the assessee also referred to the judgment of the Hon ble jurisdictional High Court in the case of Prayag Udyog P Ltd v ITAT 2000 245 ITR 288 2001 118 Taxman 68 wherein it was held that mdash An appeal under the Income tax Act 1961 has to be decided on the merits and can not be dismissed for default A litigant should not be penalized for the default of his counsel Reliance was placed on behalf of the applicants on the following case laws i Tribhuwan Kumar v CIT 2007 294 ITR 401 Raj ii Rajendra Prasad Borah v ITAT 2008 302 ITR 243 174 Taxman 568 Gau iii Anil Kumar Agrahari v CIT 2010 323 ITR 260 MP 6 2 As regards the Sr D R s plea that rule 24 of the Income tax Appellate Tribunal Rules 1963 was of no avail to the applicants in view of the decision of the ITAT Jabalpur Bench in the case of Additional Director B and Cm MPSEB v Tax Recovery Officer sic 11 TTJ Jab 149 Shri Amit Shukla Advocate ld Counsel for the assessee submitted that the said decision was on an entirely different set of facts There the application was given on behalf of the assessee to recall an order of the Tribunal that had been passed under section 254 2 i e against the order earlier passed by the ITAT in the Misc Application The Tribunal rejected the second application on the ground that no application under section 254 2 lies against the order of rectification 6 3 Shri Amit Shukla Advocate ld Counsel for the assessee submitted that in any case the submission made by the ld D R to the effect that rules 24 and 25 are available to recall an ex parte order only where the Tribunal has decided an appeal on merits is devoid of merits These are merely the enabling provisions under which the Tribunal can proceed to decide the appeal on merits The said Rules do not place any restriction on the powers of Tribunal to recall an ex parte order rather rule 24 as a whole was substituted by the Income tax Appellate Tribunal Amendment Rules 1987 with effect from 1 8 1987 6 4 Shri Amit Shukla Advocate ld Counsel for the assessee also submitted that in absence of proviso to rule 24 the power to amend an ex parte order contained in rule 24 the then was held to be in conflict with the language used under section 33 4 of the old Act which corresponds to section 254 1 of the Income tax Act 1961 Reliance in this regard was placed on the decision of the Hon ble Apex Court in the case of CIT v Chenniappa Mudaliar 1969 74 ITR 41 Relevant passage from the said judgment reads as under The scheme of the provisions of the Income tax Act 1922 relating to the Appellate Tribunal is that it has to dispose of an appeal by making such orders as it thinks fit on the merits It follows from the language of section 33 4 and in particular the use of the word thereon that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant This can only be done by giving a decision on the merits on question of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear Rule 24 of the Appellate Tribunal Rules 1946 as amended in 1948 insofar as it enables the dismissal of an appeal before the Income tax Appellate Tribunal for default of appearance of the appellant clearly comes into conflict with section 33 4 and is therefore ultra vires 6 5 Shri Amit Shukla Advocate ld Counsel for the assessee submitted that following the above judgment of the Hon ble Supreme Court in the case of S Chenniappa Mudaliar supra it was held in a series of judicial pronouncements that rule 24 as the said Rule stood at the relevant time was contrary to inherent power and jurisdiction of the Tribunal to set aside the ex parte order in the interest of justice 6 6 In view of the above Shri Amit Shukla Advocate ld Counsel for the assessee submitted that the only conclusion that emerges is that mdash i Tribunal has inherent power and jurisdiction to set aside the ex parte order passed by it earlier in the interest of justice ii Rule 24 as it existed before being substituted by the Income tax Appellate Tribunal Amendment Rule 1987 was ultra vires of the main Act................Income Tax - Case Law
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