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Issues involved: Application for recalling order due to non-appearance leading to dismissal of appeal u/s 254(2) of the Income Tax Act.
The applicant filed a Miscellaneous Application seeking to recall the order dated 25.11.2011 in relation to Assessment Year 2006-07, which was dismissed ex-parte for want of prosecution. The applicant cited illness and the failure of the senior lawyer, Sh. Ved Jain, to attend the proceedings as reasons for the non-appearance. The applicant requested for the hearing to be extended due to these circumstances. The applicant's contention was that the non-appearance was due to illness and the wrong impression created by Sh. Ved Jain's absence. The counsel argued for condonation of the delay and requested for the case to be heard on merits to avoid inconvenience to the client, an elderly individual. On the hearing date, Sh. Ved Jain appeared and argued that there was a reasonable cause for the non-appearance previously. The Revenue's representative highlighted that Sh. Ved Jain did not have the Power of Attorney on the date of the appeal hearing, rendering the adjournment application invalid. Citing a precedent case, the Revenue contended that the Miscellaneous Application lacked merit and should be dismissed. Upon reviewing the record, it was found that the appeal hearing was adjourned at the request of both parties, but on the subsequent date, Sh. Ved Jain did not appear, and an application for adjournment was submitted by a party without proper authorization. The appeal was decided on its merits, with certain grounds upheld and others dismissed due to lack of evidence. The Tribunal concluded that the Miscellaneous Application was misconceived and not maintainable. As the adjournment was requested by a counsel without proper authority, the application under section 254(2) of the Act was deemed not viable for review. Citing the precedent case, the Tribunal dismissed the application as the issues had already been adjudicated on merits and could not be re-heard. In the final decision, the Tribunal dismissed the Miscellaneous Application filed by the assessee on the grounds of non-maintainability. The order was pronounced in open court on October 30, 2012.
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