2004 (4) TMI 15

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..... o the Tribunal for consideration afresh in accordance with law and after affording the respective parties an opportunity of being heard
Judge(s) : M. H. S. ANSARI., SOUMITRA PAL. JUDGMENT M.H.S. Ansari J. - This is an appeal under section 260A of the Income-tax Act, 1961, against the order of the Income-tax Appellate Tribunal (ITAT), whereby the miscellaneous applications filed by the assessee for recalling the ex parte order dated November 29, 1999, in I.T.A. Nos. 1870 and 1871 (Cal) of 1993 for the assessment years 1985-86 and 1986-87 was rejected. The appeal was admitted by an order dated January 8, 2001, on the following two questions: 1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribun .....

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..... denied an opportunity of hearing. The Instant case is one where, as can be seen from the order under appeal, the appeal had been adjourned to November 25, 1999, or the request of the assessee's counsel and when the case was called or November 25, 1999, nobody appeared on behalf of the assessee nor any adjournment application was filed. It is therefore a case where the assessee failed to avail of the opportunity of hearing. It was thereupon contended by Mr. S. Bagchi, learned counsel for the appellant, that the learned Income-tax Appellate Tribunal in its order under appeal have not considered the relevant facts on record but rejected the applications on one aspect of the matter, namely, that the assessee ha filed the applications for resto .....

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..... tax Act, the Income-tax Appellate Tribunal has power to restore and rehear an appeal disposed of on the merits in the absence of any party who has been prevented by reasonable and sufficient cause from appearing before the Tribunal at the date of hearing. In the case on hand, the learned Income-tax Appellate Tribunal by its order under appeal dated May 3, 2000, has disposed of the miscellaneous applications on the merits. There is some justification for the learnt Tribunal to make the statements that it did in paragraph 4 of the order under appeal. The Tribunal was further justified, in our view, in observing that the assessee cannot be allowed to take advantage of the wrong statements. The fact, however, remains that the Tribunal has not .....

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