2019 (3) TMI 1675 - AT - Income Tax

Misc. Application - HELD THAT - Order was received back unserved from the Postal Department and thereafter, a letter dated 29.05.2018 was issued to ITO, Ward-03, Sawai Madhopur vide speed post to serve the original order on the assessee. Subsequently, a communication dated 04.06.2018 has been received from ITO, Ward-3, Sawai Madhopur stating that the said order has been sent to the jurisdictional ITO, Karauli to serve the same on the assessee. Therefore, we find that the contention so raised by the ld. AR in the affidavit that he has been served the order by the ITO, Karauli on 4.7.2018 stand corroborated. Accordingly, we admit the Misc. Application filed by the assessee. On the merits of the Misc. Application, we have heard the ld. AR as well as the ld. DR and considered the relevant material on record. We note that the Co-ordinate Bench has dismissed the appeal for non prosecution without giving the finding on merits and further assessee has explained the reason for non appearance of the ld. AR on account of bad medical health. Accordingly, in the interest of justice, we recall the impugned order of the Tribunal and direct the Registry to fix the appeal of the assessee for fresh hearing and adjudication in regular course. Misc. Application of the assessee is allowed.

Summary

Issues:
1. Delay in filing Misc. Application for recall of ex-parte order
2. Maintainability of the Misc. Application
3. Service of Tribunal order on the assessee
4. Merits of the Misc. Application

Analysis:
1. The Misc. Application was filed by the assessee to recall the ex-parte order passed by the Co-ordinate Bench. The delay in filing the application was noted, and the Revenue objected to its maintainability.

2. The assessee argued that the Tribunal's order was received late, in July 2018, from the office of ITO, Karauli, despite being dated 24.03.2017. The Registry confirmed sending the order via speed post in March 2017, but it was returned unserved. The order was eventually sent for service to the ITO, Karauli, and the assessee's claim of receiving it in July 2018 was supported by the Registry's report. Consequently, the Misc. Application was admitted.

3. Regarding the merits of the Misc. Application, the Co-ordinate Bench had dismissed the appeal for non-prosecution without considering the merits, as the assessee's representative was absent due to health reasons. After hearing both parties and reviewing the material, the Tribunal decided to recall the order in the interest of justice. The appeal was directed for fresh hearing and adjudication, allowing the assessee's Misc. Application.

4. The Tribunal pronounced the decision on 20/03/2019, allowing the Misc. Application of the assessee and setting the appeal for a new hearing. The judgment highlighted the importance of ensuring due process and considering reasons for non-appearance before dismissing appeals, emphasizing the principles of natural justice.