9911796707
TMI Blog2015 (10) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable. When the order which was subject-matter of challenge before the Tribunal was no longer in existence as the same had merged with the subsequent order passed by the Commissioner (Appeals), the Tribunal was not justified in not recalling the previous order passed by it on the appeal preferred by the assessee confirming the previous order passed by the Commissioner (Appeals). Merely because the Tribunal did not find that sufficient cause had been made out by the assessee of remaining absent at the time when the appeal came to be decided, was no reason for the Tribunal, having regard to the facts and circumstances of the case to reject the application filed by the petitioner. Besides, it is an admitted position that against the subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent Income Tax Officer framed assessment under sub-section (3) of section 143 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) making an addition of ₹ 31,00,000/- under section 68 of the Act. The petitioner carried the matter in appeal before the Commissioner of Income Tax (Appeals), who by an order dated 16.10.2010, dismissed the appeal and confirmed the addition. The petitioner thereafter, moved an application under section 154 of the Act on 19.2.2011 before the Commissioner (Appeals) requesting to rectify the factual error which had crept into the earlier order dated 16.11.2010. By an order dated 3.3.2011, the application under section 154 came to be allowed by the Commissioner (Appeals). Against the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t relevant time, when the appeal preferred by the petitioner against the previous order of the Commissioner (Appeals) came up for hearing before the Tribunal, none appeared for the assessee before the Tribunal and the matter came to be decided ex parte . It appears that even on behalf of the revenue, it was not pointed out that the order which was subject-matter of challenge before the Tribunal had subsequently been modified and had merged with the subsequent order passed by the Commissioner (Appeals). The petitioner thereafter, moved the miscellaneous application under section 254(2) of the Act seeking recall of the order passed by the Tribunal in the light of the fact that the same confirmed the previous order passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals). Having regard to the overall facts of the case, in the opinion of this court the Tribunal ought to have allowed the application and recalled its previous order confirming the order passed by the Commissioner (Appeals), inasmuch as on that date the said order passed by the Commissioner (Appeals) already stood merged with the subsequent order. 8. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order dated 19.2.2015 passed by the Tribunal in M.A. No.189/AHD/2014 is hereby quashed and set aside. The miscellaneous application is hereby allowed and the order dated 13.6.2014 passed by the Tribunal in ITA No.77/AHD/2011 is hereby recalled. Rule is made absolute accordingly with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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