2018 (4) TMI 1794 - AT - Income Tax

Seeking recall of order - non-appearance of representative of the assessee - assessee sought an adjournment on the ground that Chartered Accountant is travelling - assessee has pleaded that the appeals of the assessee 2017 (9) TMI 560 - ITAT MUMBAI were dismissed by applying the ratio of decision of Mumbai Tribunal in case of CIT vs. Multiplan India (Pvt.) Ltd. 1991 (5) TMI 120 - ITAT DELHI-D - HELD THAT - Perusal of record reveals that Shri Ijeet Fernandes appeared on behalf of assessee, who sought an adjournment on the ground that Chartered Accountant is travelling. The ground of adjournment was vague, thus, adjournment was declined. Shri Ijeet Fernandes was asked to assist the bench, however, he expressed his inability. Thus, the bench left no option except to proceed on the basis of material available on record. The assessee has filed both the appeal in the year 2012. The assessee is seeking adjournment on one pretext or the other since beginning. No documentary evidence to substantiate the grounds of appeal is filed on record. We have noted that the assessee has filed the present application on the ground that the appeal was dismissed by applying the ratio of decision of Multiplan India (Pvt.) Ltd. (supra) in the order dated 14.06.2017. The present applications are filed in a casual manner. The contention of the application is contrary to the contents of order dated 14.06.2017. There is no reference of decision of Multiplan India (Pvt.) Ltd. (supra). However, keeping in view the principle of natural justice and invoking the power under Rule 24 of Income-tax (Appellate Tribunal) Rules 1963, the order dated 14.06.2017 is recalled. The assessee is directed to fully co-operate and not to seek adjournment without any valid and proper reason and shall file the necessary evidence, if any on record, without any further delay. In case further adjournment is sought on frivolous grounds, the assessee shall be burdened with heavy cost.

Summary

Issues:
1. Recall of order dated 14.06.2017 due to non-appearance of assessee's representative.
2. Application filed by assessee seeking recall based on miscommunication with Chartered Accountant.
3. Consideration of grounds for recall, lack of documentary evidence, and invoking Rule 24 of Income-tax (Appellate Tribunal) Rules 1963.

Issue 1: Recall of Order Due to Non-Appearance
The appellant filed two Miscellaneous Applications seeking the recall of the order dated 14.06.2017, as the appeals were dismissed due to the non-appearance of the assessee's representative. The representative had sought an adjournment on the grounds of the Chartered Accountant's unavailability, which was declined by the bench. Despite being asked to assist, the representative expressed inability, leading the bench to proceed based on available records. The appellant had a history of seeking adjournments since the beginning without providing substantial documentary evidence to support the grounds of appeal. The Tribunal recalled the order considering the principle of natural justice and invoked Rule 24 of the Income-tax (Appellate Tribunal) Rules 1963.

Issue 2: Miscommunication with Chartered Accountant
The appellant argued that the non-appearance of their representative was unintentional and due to miscommunication with the Chartered Accountant. The authorized representative stated that the non-appearance on the specified date was not deliberate, but a result of improper communication. In contrast, the Departmental Representative contended that the order was passed after assessing the available material and that the application lacked merit. The Tribunal, after considering both parties' submissions, found the grounds for the recall to be casual and contrary to the contents of the original order.

Issue 3: Lack of Documentary Evidence and Recall Decision
The Tribunal noted that the appellant had filed both appeals in 2012 and had a history of seeking adjournments without providing documentary evidence to support their case. The application for recall was based on the alleged application of a specific decision, which was not reflected in the original order. Despite this, invoking the power under Rule 24 of the Income-tax (Appellate Tribunal) Rules 1963, the Tribunal recalled the order dated 14.06.2017, directing the appellant to cooperate fully, avoid frivolous adjournment requests, and submit necessary evidence promptly. Failure to comply could result in heavy costs for the appellant. The Miscellaneous Applications were allowed, and the appeals were scheduled for a hearing by a regular bench.

In conclusion, the Tribunal allowed the recall of the order dated 14.06.2017 based on the appellant's history of seeking adjournments without providing substantial evidence, miscommunication with the Chartered Accountant, and the principles of natural justice. The decision highlighted the importance of cooperation, timely submission of evidence, and avoiding frivolous adjournment requests to ensure fair proceedings.