2018 (11) TMI 1612 - AT - Income Tax

Rectification u/s 254 - exparte order - HELD THAT - In this case, the ITAT did not decide the appeal on merits as it is mandated to but rather rejected for non-prosecution. In the present case also, the appeals filed by the assessees are dismissed for non-prosecution. Misc. Applications filed by the assessees are only recalling of the exparte order, it is neither for rectification nor for any amendment. Therefore, under these facts and circumstances of the case, we find that the judgment of the Hon'ble Delhi High Court in the case of Om Prakash Sangwan 2018 (5) TMI 1789 - DELHI HIGH COURT is squarely applies to the facts of the present case. we allow the Misc. Applications filed by the assessees and recall the exparte order.

Summary

Issues:
Recall of exparte order due to non-appearance of counsel.

Analysis:
The appellants sought the recall of a combined exparte order passed by the Tribunal due to the non-appearance of their counsel during the hearing. The counsel for the assessee had requested an adjournment citing heavy work pressure in the Income Tax Department. The new counsel filed a Vakalatnama and expressed readiness to appear before the Tribunal on the scheduled date. The assessees argued that the Misc. Applications filed under Rule 24 of the ITAT Rules, 1963 did not specify any time limit, and thus, the exparte order should be recalled, citing the decision of the Delhi High Court in a similar case.

The Departmental Representative opposed the recall of the order, leading to a hearing where both parties presented their arguments. The Tribunal noted that the batch of appeals had been dismissed exparte, and subsequently, the assessees filed a Misc. Application beyond the time limit prescribed under section 254(2) of the Act. The Tribunal considered the reasons for non-appearance, the change in counsel, and the delay in filing the application. It was observed that there was a sufficient cause for the non-appearance and that the appeals deserved to be recalled to ensure justice and adhere to the principles of natural justice.

The Tribunal referred to a judgment of the Delhi High Court in a similar case, emphasizing the need for the ITAT to decide appeals on their merits. The Tribunal concluded that the appeals were dismissed for non-prosecution and that the Misc. Applications were solely for recalling the exparte order. Following the Delhi High Court's judgment, the Tribunal allowed the Misc. Applications, recalling the exparte order and directing the appeals to be posted for regular hearing.

In the final decision, the Tribunal allowed all the Misc. Applications filed by the assessees, emphasizing the importance of deciding appeals on their merits and ensuring that parties are given a fair opportunity to present their case.