2019 (7) TMI 1766 - AT - Income Tax

Ex parte order by CIT-A - non appearance on the date of hearing of appeal, the learned Authorised Representative submitted, when the appeal was called for hearing on 11th October 2018, he was appearing before another Bench of the Tribunal - HELD THAT - On a perusal of the material on record, it is seen that for the first time the appeal was fixed for hearing on 10th October 2018, and on the said date, at the request of the assessee, hearing of the appeal was adjourned to 11th October 2018. However, on 11th October 2018, since no one appeared for the assessee when the appeal wascalled for hearing, the Bench proceeded to decide the appeal ex parte. After considering the submissions of the learned Authorised Representative that when the appeal was called for hearing, he was busy in another Bench and also taking note of the fact that the assessee has not taken many adjournments and the appeal was disposed of on the second date of hearing itself, I am inclined to recall the order dated 18th October 2018, and restore the appeal to its original position. The Registry is directed to fix the appeal for hearing before the assigned Bench in due course. Notice of hearing intimating fresh date should be issued to both the parties.

Summary

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

Analysis:
The judgment revolves around the application filed by the assessee seeking the recall of the ex-parte order dated 18th October 2018. The learned Authorised Representative explained that he could not appear on the date of the hearing as he was presenting arguments before another Bench of the Tribunal. Consequently, the appeal was heard ex-parte. The representative requested the recall of the order, emphasizing that the assessee should not suffer due to his non-appearance. The Departmental Representative did not oppose the request for the recall of the ex-parte order.

Upon considering the submissions from both parties and examining the record, it was noted that the appeal was initially scheduled for hearing on 10th October 2018. However, due to the assessee's request, the hearing was adjourned to 11th October 2018. On the latter date, as there was no appearance on behalf of the assessee, the appeal was decided ex-parte. The Judge acknowledged the reasons provided by the Authorised Representative for his absence, noting that the appeal was disposed of on the second hearing date without multiple adjournments. Consequently, the Judge decided to recall the order dated 18th October 2018 and restore the appeal to its original position. The Registry was directed to schedule the appeal for a fresh hearing before the assigned Bench, with notices to be issued to both parties.

In conclusion, the miscellaneous application filed by the assessee seeking the recall of the ex-parte order was allowed. The order was pronounced in the open Court on 17th July 2019.