2019 (9) TMI 1310 - AT - Income Tax

Recall of ex-parte Tribunal order - none appeared on behalf of the assessee on the appointed date of hearing - HELD THAT - As required by Rule 24 of ITAT Rules 1963 the assessee has explained the reasons due to which none could appear before the Tribunal on the appointed date of hearing i.e. 16.01.2019 and I am satisfied that the reasons stated by assessee are reasonable and hence as per Rule 24 of ITAT Rules 1963 this ex-parte Tribunal order should be recalled but because the assessee has not rectified the defect as pointed out by the Registry regarding payment of appeal fees under wrong head I feel it proper to direct the assessee to make payment of appeal fees afresh under proper head on or before 15.09.2019 and subject to this condition I recall this ex-parte Tribunal order and fix the appeal for hearing on 14.10.2019. On the date of hearing the assessee should produce the proof of payment of appeal fees as directed above. Since the date of hearing is pronounced in the open court no separate notice of hearing is required to be issued. M.P. filed by the assessee is allowed.

Summary

Issues:
Recall of ex-parte Tribunal order due to non-appearance of assessee on the appointed date of hearing and incorrect payment of appeal fees.

Analysis:
The assessee filed a Miscellaneous Petition seeking the recall of the ex-parte Tribunal order dated 18.01.2019. The assessee explained that a defect memo was issued by the Tribunal's Registry on the date of filing the appeal, with the hearing date set for 16.01.2019. However, there was confusion as the assessee and their representative thought the date was for rectifying the defect, not for the appeal hearing, leading to their non-appearance.

During the hearing, it was revealed that the payment of &8377; 10,000/- made by the assessee was incorrectly categorized under "Tax on Regular Assessment" instead of as appeal fees. The Tribunal bench suggested that if the assessee made a fresh payment of appeal fees by 15.09.2019, the ex-parte order could be recalled under Rule 24 of ITAT Rules, 1963. The assessee's representative agreed to this condition, while the Revenue argued against recalling the order due to the unresolved defect.

The Tribunal, considering Rule 24 of ITAT Rules, 1963, acknowledged the reasonable explanation provided by the assessee for their non-appearance on the hearing date. Consequently, the Tribunal decided to recall the ex-parte order, subject to the condition that the assessee rectify the defect by making a fresh payment of appeal fees under the correct head by 15.09.2019. The appeal was scheduled for a new hearing on 14.10.2019, with the requirement for the assessee to provide proof of the payment on that date, eliminating the need for a separate hearing notice.

In conclusion, the Miscellaneous Petition filed by the assessee was allowed, and the ex-parte Tribunal order was recalled under the specified conditions to address the incorrect payment of appeal fees and ensure the proper conduct of the appeal hearing.