2005 (11) TMI 54 - HC - Income Tax

Power of tribunal to recall the order - Revenue s appeal was heard and disposed of ex parte by the Tribunal on the assumption that the notice issued to the respondent-assessee has been duly served. The assessee then applied for recall of the said order in terms of rule 25 of the Income-tax (Appellate Tribunal) Rules, 1963, on the ground that the summons issued to the assessee had not been duly served. The Tribunal has by the order impugned in this appeal, recalled the earlier order - Assessee had made an application seeking setting aside of the ex parte order and shown to the satisfaction of the Tribunal that its non-appearance on the date was fixed for a sufficient cause, namely, non-service of any notice issued by the Tribunal. In that view, therefore, no question of law much less any substantial question of law arises for our consideration

Summary

Issues:
Appeal disposal based on ex parte hearing assumption, Recall application under rule 25 of Income-tax (Appellate Tribunal) Rules, 1963, Restoration of appeal for fresh hearing, Provisions of rule 25 and its proviso, Non-appearance due to non-service of notice, Dismissal of appeal.

The High Court considered the appeal disposed of ex parte by the Tribunal, which assumed notice service to the respondent-assessee. The assessee applied for recall under rule 25 of the Income-tax (Appellate Tribunal) Rules, 1963, citing non-service of summons. The Tribunal, in response to the application, recalled the earlier order and restored the appeal for a fresh hearing and disposal in accordance with the law.

The Court acknowledged the power of the Tribunal under rule 25 of the Appellate Tribunal Rules, 1963, to dispose of an appeal if the respondent is absent. However, the proviso to the rule allows setting aside such an order upon application by the respondent showing sufficient cause for non-appearance. In this case, the respondent-assessee successfully demonstrated non-service of the notice as a valid reason for non-appearance, leading to the Tribunal's decision to recall the ex parte order and restore the appeal for a fresh hearing.

The Court emphasized that the respondent had followed the procedure by applying for setting aside the ex parte order and proving the non-appearance was due to non-service of the Tribunal's notice. Consequently, the Court found no legal issue, let alone a substantial question of law, to consider in the appeal. Therefore, the appeal was dismissed based on the satisfaction that the respondent had shown sufficient cause for non-appearance, as per the proviso of rule 25, leading to the restoration of the appeal for further proceedings.