SHRINATH BULIYAN REFINERY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) BY this application made essentially under Order 41, Rule 19, read with Order 47, Rule 1, of the Civil Procedure Code, the applicant seeks for recalling of the order dated July 11, 2001, passed by this court in I. T. A. No. 24 of 2001 (Srinath Bullion Refinery v. CIT [2001] 251 ITR 540). The facts which led to the filing of this application lie in a narrow compass. They need mention in brief.

(2.) THE applicant was the appellant of I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)) out of which this application arises. THE said I. T. A. No. 24 of 2001 which was an appeal under Section 260A of the Income-tax Act, 1961, came up for hearing on the question of admission before a Division Bench of this court on July 9, 2001, in motion hearing. None appeared for the applicant when the case was called on for hearing. This court perused the record of the case, i.e., I. T. A. No. 24 of 2001 (see [2001] 251 ITR 540 (MP)), and by an impugned order dated July 11, 2001, dismissed the appeal in limine. It is this dismissal which has given rise to the filing of this application.

(3.) THE submission of learned counsel for the applicant was that by virtue of Section 260A(7) of the Income-tax Act, the provisions of the Civil Procedure Code relating to appeals filed in the High Court are made applicable to appeals filed under Section 260A ibid and it is for this reason the application under Order 41, Rule 19 of the Civil Procedure Code, is maintainable. Learned counsel urged that since the impugned order was passed in default of the appellant's appearance, the appellant will always be at liberty to apply for its recalling by making an application under Order 41, Rule 19 of the Civil Procedure Code notwithstanding the dismissal of appeal on the merits (i.e., by a speaking order). In other words, the submission was that even though the impugned order is a speaking one dismissing an appeal on the merits, yet the same has to be treated as a dismissal in default attracting the provisions of Order 41, Rule 19 of the Civil Procedure Code.