In Re: Subrata Roy

At the outset, we would like to point out that against the judgment and order dated 27.8.2013, the applicant (Subrato Rai) has filed SLP before the Apex Court. It is informed at the Bar that hearing in SLP has been deferred by the Apex Court on account of filing of the recall applications before this Court. In these circumstances, we proceed to hear the applications for recall. It is also relevant to mention that copies of the applications for recall in all the aforesaid captioned appeals have been accepted by Mr. Alok Mathur, Advocate, on behalf of the department.

Vide common judgment and order dated 27.8.2013, the aforesaid appeals were allowed partly and against the assessee/respondent (Shri Subrata Roy). Now, the assessee/applicant (Shri Subrata Roy) has preferred the above captioned applications for recall of the judgment and order dated 27.8.2013.

Heard Mr. Percy Pardiwalla, Senior Advocate, assisted by Mr. Waseeq Uddin Ahmed, Counsel for the assessee/applicant and perused the record.

Mr. Percy Pardiwalla, Senior Advocate, appearing on behalf of the applicant/assessee submits that on 7.8.2013, all the six appeals were treated as heard and the judgment was reserved and it was pronounced on 27.8.2013. He submits that on 7.8.2013, his assisting counsel, namely, Mr. Waseeq Uddin Ahmed, requested for a day's adjournment and in the alternative, prayed that the appellant be heard on that day i.e. 7.8.2013 and the respondent/assessee be permitted to make submissions on the very next day i.e. 8.8.2013 as Mr. Pardiwalla, Senior Advocate, has to argue the matter on behalf of the assessee and he has to come from Mumbai to argue the matters on 8.8.2013. However, the Court was pleased to reject the request. Submission is that a request for one day adjournment was not unreasonable more so because he was scheduled to come from Mumbai to argue the matters on 8.8.2013. In these backgrounds, the Counsel for the assessee/applicant did not advance any argument in respect of any of the four question of law adjudicated by this Court. More so, the written submissions filed by Mr. D.D. Chopra appeared on behalf of the department was neither served upon his assisting counsel Mr. Waseeq Uddin Ahmed nor to the assessee and as such, the applicant/assessee was not provided any opportunity to rebut the written submissions filed by Mr. D.D. Chopra, Counsel for the department.

Mr. Pardiwalla has pointed out that Sub-section (7) to Section 260A of the income tax Act, which was inserted by Finance Act, 1999, provides that the provisions of the Code of Civil Procedure, 1968 relating to appeals to High Court shall apply in the case of appeals u/s 260A. Order 41 Rule 21 of the CPC provides that where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. Therefore, this Court has power to exercise the inherent power.

Lastly, Mr. Pardiwalla submits that on account of his fault, the version of the assessee could not be put forth by him. Therefore, the matter be considered sympathetically and interest of justice would suffice, if the judgment and order dated 27.8.2013 is recalled and an opportunity of hearing in the aforesaid appeals is afforded so that he may putforth his arguments on behalf of the assessee.

Having heard Counsel for the applicant and perusing the records, we are of the view that on the facts and circumstances of the case, cause shown by the applicant is satisfactory and as such, to secure the ends of justice, it would be apt to recall the judgment and order dated 27.8.2013.

Accordingly, all the applications are allowed with a cost of Rs. 11,00,000/- [Rupees eleven lacs]. The judgment and order dated 27.8.2013 passed in the aforesaid appeals is recalled subject to payment of the aforesaid cost. The applicant/assessee is directed to deposit the aforesaid cost within a period of one month before the Senior Registrar of this Court. On receipt of the said cost, the Senior Registrar shall transmit the aforesaid amount/cost to the scheme introduced by the Association, known as Oudh Bar Association's Members And Their Families (Help In Distress), Scheme 2013 run by the Oudh Bar Association, High Court, Lucknow Bench, Lucknow. Since all applications have been disposed of finally, as indicated above, as such, all these appeals shall be listed for hearing before the appropriate Bench, as per roaster.