2020 (8) TMI 363 - AT - Income Tax

Stay petition - apparent mistake in the tribunal order or not ? - HELD THAT - No apparent mistake could be pointed out in the impugned tribunal order because only this is stated that the tribunal has dismissed the appeal of the assessee based on hearing and not on the basis of documentary evidences and in the additional grounds raised in the M. P. signed on 08.07.2020 it is stated that the documentary evidences were available in the paper book but the said paper book was not filed before the tribunal. This is admitted position that the paper book was not filed before the hearing or at the time of hearing of the appeal and the tribunal has decided the appeal based on hearing as stated by the assessee in the M. P. signed on 12.06.2020 and filed on 15.06.2020 and in the M. P. signed on 08.07.2020, the assessee says that the documentary evidences were available in the paper book but the said paper book was not filed before the tribunal because the assessee could not get time to file it because only 15 days were available after the hearing of stay petition in which early hearing was granted and the assessee has also not got opportunity to furnish the documentary evidences. It is seen that this is not the case of the assessee that documentary evidence was made available before the tribunal and reference to such evidence was made in course of hearing of the appeal and in spite of that, the tribunal has not considered such evidence. We, therefore, find no merit in this M.P.

Issues:
1. Recall of tribunal order based on documentary evidences not considered.
2. Additional grounds raised for recalling the tribunal order.
3. Consideration of documentary evidences in the appeal.
4. Applicability of Tribunal Rules 1963 in recalling tribunal order.
5. Availability of documentary evidences in the paper book.

Analysis:
1. The assessee filed a Miscellaneous Petition (M.P.) seeking the recall of the tribunal order, contending that the appeal was dismissed without considering documentary evidences. An additional M.P. was filed later, stating that the Stay Petition hearing granted early was the reason for not submitting the paper book containing necessary evidences. The tribunal was urged to recall the order under section 254(2) of the Income Tax Act.

2. During the hearing, the assessee's representative reiterated the contentions mentioned in the M.P. The representative submitted a paper book with relevant documents, including financial statements and property records. However, it was acknowledged that this paper book was not presented during the appeal hearing. The Revenue's representative argued that there was no apparent mistake in the tribunal order.

3. The tribunal analyzed the provisions of section 254(2) and Tribunal Rules, emphasizing that a recall is only permissible to rectify an apparent mistake, such as non-consideration of crucial facts or judgments. It was highlighted that documents not brought to the tribunal's attention during the hearing are not considered part of the record. The tribunal can recall an order if a party could not appear at the hearing due to a reasonable cause, which was not the case here.

4. The tribunal clarified that Rule 24 of the Tribunal Rules 1963, allowing a recall for non-appearance, was not applicable as the assessee's representative had attended the appeal hearing. The argument of insufficient time for filing the paper book was countered by stating that the party could have requested an adjournment, which was not done. The tribunal concluded that no apparent mistake was evident in the order.

5. Ultimately, the tribunal dismissed the assessee's M.P., emphasizing that the paper book with documentary evidences was not filed before or during the appeal hearing. The tribunal's decision was based on the oral submissions made during the hearing, as the documentary evidences were not officially presented. The tribunal found no merit in the recall request based on these grounds.

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