2018 (2) TMI 2089 - AT - Income Tax

Miscellaneous Application seeking recall of the order passes ex-parte without hearing the assessee - assessee submitted he had to assist an Advocate in a Write Petition filed before Hon ble Bombay High Court and hence he could not appear before the Tribunal - as submitted that on the very same date another appeal which belong to the same group was also listed before E Bench and he had duly moved an application before the E Bench seeking adjournment - As submitted that he inadvertently failed to take note of the date of hearing of the impugned appeal in his diary and hence an application seeking adjournment could not be moved HELD THAT - Having regard to the submissions made by the assessee we are of the view that there is sufficient cause for the assessee in not appearing before the Tribunal on the date of hearing. Accordingly in exercise of powers vested with the Tribunal under Rule 24 of the Appellate Tribunal Rules we recall the impugned order. We also direct the Registry to post the appeal for hearing in the normal course under notice to the parties.

Summary

Issues:
Recall of ex-parte order due to non-appearance of assessee before ITAT Mumbai.

Analysis:
The judgment by the Appellate Tribunal ITAT Mumbai, delivered by B.R. Baskaran (AM), pertains to a Miscellaneous Application filed by the assessee seeking the recall of the ex-parte order dated 4.5.2016 passed in ITA No. 1914/Mum/2008. The assessee's authorized representative was unable to appear before the Tribunal on the scheduled hearing date due to assisting an Advocate in a Write Petition filed before the Hon'ble Bombay High Court. The representative had moved an application before another bench seeking adjournment for a related appeal on the same day but inadvertently missed noting the hearing date for the present appeal. The learned AR contended that there was no fault on the part of the assessee for the non-appearance and requested the recall of the order.

Upon hearing the arguments and perusing the record, the Tribunal acknowledged the reasons presented by the assessee's representative for the absence on the hearing date. Considering the sufficient cause shown for non-appearance, the Tribunal invoked its powers under Rule 24 of the Appellate Tribunal Rules to recall the impugned order. The Tribunal further directed the Registry to list the appeal for a normal course hearing, notifying all concerned parties. Consequently, the Miscellaneous Application filed by the assessee was allowed, and the order was pronounced in the Court on 16.02.2018.

This judgment showcases the Tribunal's adherence to procedural fairness and the exercise of discretion in recalling an ex-parte order due to justifiable reasons for non-appearance by the assessee's authorized representative. The decision underscores the importance of demonstrating valid cause for absence in seeking relief from adverse orders, ensuring equitable treatment and upholding the principles of natural justice in legal proceedings before the Tribunal.