2015 (11) TMI 13 - AT - Income Tax

Rectification of mistake - non receipt of notice of hearing - Held that - From the copy of notices available on record, it is seen that the notices were served through RPAD at the address given by the Assessee in the Form No. 36 filed by the Assessee. The acknowledgement of the RPADs as available from the record also reveals that the notices were indeed served because the acknowledgement bears the signature and the mobile number of the recipient of the notice. We further find that the order of the Tribunal against which the present M.A has been filed was also sent to the same address at which the notices were sent and therefore the submission of Assessee of non receipt of notice does not carry any force more so when the order against which the M.A. has been filed was also sent at the same address. With respect to prayer of the Assessee to recall the impugned order, we find that the order was passed on merits. Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 also provides that when on the date of hearing, the appellant does not appear either in person nor through an authorized representative, the Tribunal may dispose of the appeal on merits after hearing the respondent. Further, when no sufficient cause for non appearance at the time of hearing of appeal has been brought out by the Assessee as noted hereinabove, and therefore we are of the view that proviso to Rule 24 of the I.T. (Appellate Tribunal) Rules, 1963 would also not be applicable in the present case and thus we find no reason to recall the order of Tribunal dated 07/11/2014.

Summary

Issues: Appeal for recalling order due to non-receipt of hearing notice, Tribunal's power to review its order, application under Section 254(2) of the Act.

Analysis:
1. The appellant filed a Miscellaneous Application (M.A.) requesting the Tribunal to recall the order passed in ITA No. 77/AHD/2011 on 07.11.2014, citing non-appearance during the hearing due to non-receipt of the hearing notice. The appellant had moved an application u/s. 154 before the CIT(A) against their order, which was rectified, and the Department had appealed against the rectified order. The appellant argued for the order's recall under Section 254(2) of the Act. The Department opposed, stating the Tribunal cannot review its order.

2. The Tribunal examined the submissions and evidence. It noted that on 09.06.2014, no one appeared on behalf of the appellant during the hearing. The appellant claimed non-receipt of the hearing notice, but the record showed notices were served through RPAD at the given address, with acknowledgment bearing the recipient's signature and mobile number. The Tribunal sent the order to the same address as the notices. The Tribunal found no merit in the appellant's claim of non-receipt of notice, especially when the order was received at the same address. Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 allows disposal of appeals on merits when the appellant fails to appear. Since no valid reason for non-appearance was presented, the Tribunal concluded that the proviso to Rule 24 would not apply, and there was no basis to recall the order dated 07/11/2014.

3. The Tribunal dismissed the Miscellaneous Application, upholding the order passed on merits. The decision was pronounced in Open Court on 19 - 02 - 2015.