2019 (9) TMI 195 - HC - Income Tax

Rejection of application u/s 254(2) by the ITAT to re-call the order - order was passed ex-parte - non appearance of assessee - HELD THAT - Tribunal proceeded on the basis that there was no appearance for the assessee and allowed the appeal filed by the Revenue. To recall the order passed by the Tribunal dated 22.2.2006, the assessee filed a miscellaneous petition on 03.7.2008 and it was rejected by the Tribunal by the impugned order on the ground that the assessee was not able to point out any mistake in the said order. No litigant would stand benefited by not appearing before a court or tribunal or belatedly appearing before a court or tribunal. Therefore, the Courts have held that the bona fides of the parties should be examined before a tough decision is taken. The assessee's appeal was partly allowed by the CIT(A). The Tribunal, while recording that none appeared for the assessee, had not referred to the petition for adjournment filed by the assessee's counsel and proceeded to allow the Revenue's appeal by placing reliance on the decision of the Hon'ble Supreme Court in the case of IPCA Laboratories Vs. DCIT 2004 (3) TMI 9 - SUPREME COURT . Ex parte order set aside - matter remitted before tribunal for a fresh consideration.

Summary

Issues:
1. Appeal under Section 260A of the Income Tax Act, 1961 challenging order dated 29.8.2008 made by the Tribunal for assessment year 2000-01.
2. Dismissal of miscellaneous petition for recall of ex parte order by the Tribunal.
3. Failure to consider petition for adjournment and subsequent allowance of Revenue's appeal.
4. Application of IPCA Laboratories Vs. DCIT decision.
5. Recurrent issue with success for the assessee in earlier years.

Analysis:
1. The appellant filed an appeal under Section 260A of the Income Tax Act, 1961, challenging the order dated 29.8.2008 made by the Tribunal for the assessment year 2000-01. The appeal was admitted on 08.12.2009 based on substantial questions of law regarding the dismissal of a miscellaneous petition for the recall of an ex parte order passed by the Tribunal.

2. The assessee challenged the order passed in a miscellaneous petition seeking to recall the order dated 22.2.2006 by the Tribunal. The Tribunal had allowed the Revenue's appeal without considering the petition for adjournment filed by the assessee's counsel, which stated the inability to furnish appeal records and requested to take up both appeals.

3. The Tribunal's decision was based on the lack of appearance by the assessee and the failure to point out any mistake in the order. However, the Court emphasized the importance of examining the bona fides of the parties before making a decision. It was noted that the Tribunal could have accommodated the request made on behalf of the assessee, especially since it was the first date of hearing.

4. The assessee argued that the decision in IPCA Laboratories Vs. DCIT did not apply to their case. The Court agreed that the said decision might not be applicable to the facts of the assessee's case, indicating a potential misapplication of legal precedent by the Tribunal.

5. Considering that the issue before the Tribunal was a recurrent one and the assessee had succeeded in earlier years, the Court directed the Tribunal to reconsider the case and allow the appeal to be heard on merits. The Court highlighted the importance of ensuring a fair hearing and set aside the order to recall the ex parte order and proceed with a fresh consideration on the merits of the appeal.