2019 (1) TMI 1552 - AT - Income Tax

Ex-parte order - assessee's non-appearance on the date of hearing - HELD THAT - Non-appearance on the date of hearing i.e. on 10.04.2018 was on account of genuine reasons as submitted by AR during the course of hearing. In our opinion, since the appeal was heard ex-parte without considering the merits of the case , we, therefore, are of the opinion that the assessee should be given one more opportunity to present his case on merits. Accordingly, we hereby recall the exparte order and direct the Registry to post the same for hearing on 15.02.2019.

Summary

Issues:
Recalling and rectification of an ex-parte order due to non-appearance of the assessee on the date of hearing.

Analysis:
The Appellate Tribunal ITAT MUMBAI considered a miscellaneous application seeking the recalling and rectification of an order dated 27.04.2018, passed in relation to ITA No.5280/Mum/2016 for the assessment year 2011-2012. The authorized representative of the assessee was unable to appear before the Tribunal on the scheduled date of hearing, leading to the case being decided ex-parte. The assessee's representative was out of station and the person deputed to seek adjournment failed to reach in time, resulting in the non-appearance. The Tribunal acknowledged that the non-appearance was due to genuine reasons beyond the control of the assessee. The Tribunal noted that since the appeal was heard ex-parte without considering the merits of the case, it was just and fair to grant the assessee another opportunity to present their case on merits. Consequently, the Tribunal decided to recall the ex-parte order and directed the case to be posted for hearing on a specified date in the interest of justice.

The Appellate Tribunal took into account the submissions of both the authorized representative of the assessee and the Departmental Representative. The authorized representative argued for the recall and rectification of the order based on the genuine reasons for non-appearance, emphasizing the need for justice to be done to the assessee by allowing the case to be heard on merits. On the other hand, the Departmental Representative objected to the recalling/rectification, citing the non-appearance of the assessee despite knowledge of the hearing date. After considering the arguments and perusing the material on record, the Tribunal found merit in the assessee's plea and decided to grant the requested relief by allowing the miscellaneous application. The Tribunal's decision to recall the ex-parte order and provide the assessee with an opportunity to present their case on merits was aimed at ensuring fairness and upholding the principles of natural justice.

In conclusion, the Appellate Tribunal ITAT MUMBAI, comprising Shri Saktijit Dey, Judicial Member, and Shri Rajesh Kumar, Accountant Member, granted the miscellaneous application of the assessee, allowing the recalling and rectification of the ex-parte order dated 27.04.2018. The Tribunal ordered the case to be posted for hearing on 15.02.2019 to enable the assessee to present their case on merits. The decision was pronounced in the open court on 17/01/2019, emphasizing the Tribunal's commitment to ensuring a fair and just adjudication process.