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TMI Blog2020 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 1st February, 2019 passed by the Income Tax Appellate Tribunal, Bench "B" , Mumbai (briefly "the Tribunal" hereinafter) in MA No.483/M/2018 for the assessment year 2006-07, whereby the earlier order of the Tribunal dated 10th January, 2018 passed in Income Tax Appeal No.3910/Mum/2010 has been recalled and the appeal has been directed to be placed for hearing afresh. 3. It may be mentioned that respondent No.2 i.e. the assessee had preferred Income Tax Appeal No. 3910/Mum/2010 for the assessment year 2006-07 before the Tribunal against the order passed by the Commissioner of Income Tax (Appeals)-13, Mumbai dated 6th January, 2010. By order dated 10th January, 2018, Tribunal dismissed the appeal. 4. From a perusal of the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower conferred under sub-section (5) of Section 255 of the Act, Income Tax (Appellate Tribunal) Rules, 1963 (briefly "the Rules" hereinafter) have been framed. Rule 24 of the said Rules provides that in case of an ex-parte order if the appellant appears otherwise and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called for hearing, the Tribunal shall make an order setting aside the ex-parte order and restore the appeal. However, his contention is that though time limit is not provided under Rule 24, the time limit prescribed under Section 254 (2) has to be strictly adhered to as the Rules cannot contravene or operate beyond the parent Act. In support of his submissions, Mr.Mohanty has plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessment year under consideration the limitation period may be construed to be four years from the date of the order. Even otherwise, if a view is taken that since the impugned order was passed by the Tribunal on 1st February, 2019, the substituted limitation period of six months would be applicable, then also it is seen that the said period of six months was available to respondent No.2 till 31st July, 2018. Respondent No.2 had filed the application for recall of the ex-parte order on 9th July, 2018 within the limitation period of six months. However, Tribunal passed the impugned order only on 1st February, 2019. 11. At this stage, we may advert to Section 254(2) of the Act, relevant portion of which reads as under:- "254(1).... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inability of the Tribunal to pass such an order within the period provided, neither the assessee nor the revenue should suffer. What therefore becomes relevant is that the assessee or the Assessing Officer should bring the mistake to the notice of the Tribunal within the limitation period. 14. Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 (Rules) is relevant. Rule 24 reads as under :- "24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. Such a power inheres in every Tribunal. 18. As candidly pointed out by Mr.Mohanty, with regard to the pre-amended provision of Section 254(2), Supreme Court in Sree Ayyanar Spinning and Weaving Mills Limited (supra), had accepted the position that such an order can be recalled beyond the then prescribed period of four weeks, provided the application is made within the limitation period. In fact, Rajasthan High Court in Harshavardhan Chemicals and Minerals Limited Vs. Union of India, 256 ITR 767 took the view that if the assessee had moved the application within four years from the date of the order, the Tribunal was boun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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