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TMI Blog2020 (12) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative, which, however, the Tribunal has failed to take into account. Besides, in para 6 of the Impugned Order, the Tribunal also went into the question of merits of the ex-parte decision, by delving into the correctness of order. This also was an erroneous yardstick for deciding the Miscellaneous Application. Tribunal has failed to appreciate that the Petitioner was seeking the recall of the order dated 24th July, 2018 and restoration of the appeal, and not the rectification of any mistake apparent on record. The merits of the case could not have been gone into at the stage of deciding an application under Rule 25 of the ITAT Rules. Rules 24 and 25 of the ITAT Rules enable the Tribunal to restore the appeal, if a party appears afterwards and satisfies the Tribunal that there was a sufficient cause for its non-appearance when the appeal was taken-up for hearing. The proviso to Rule 25 deals with the situation where the Tribunal has passed an ex-parte order, due to non-appearance of the Respondent, even though the order was passed on merits. Thus, we are of the opinion that the reasoning given in para 6 of the Impugned Order is beyond the scope and ambit of Rules 25 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Income Tax (Appeal) [hereinafter referred to as CIT(A) ]. The said appeal was decided by the CIT(A) in favour of the Petitioner, and the additions made by the Assessing Officer were deleted. The Revenue, thereafter, preferred an appeal before the ITAT on 15th April, 2014 bearing ITA No. 2297/DEL/2014. The said appeal was heard ex-parte on 5th July, 2018, and finally allowed in favour of the Revenue vide order dated 24th July, 2018. 5. Aggrieved with the aforesaid ex-parte order, on 3rd December, 2018, the Petitioner filed the Miscellaneous Application before the ITAT, under Section 254(2) of the Act, read with Rule 25 of the Income Tax (Appellate Tribunal) Rules, 1963 [hereinafter referred to as the ITAT Rules ] seeking setting aside of the ex-parte order and restoration of the appeal. Whilst the above Miscellaneous Application was pending, the Petitioner also filed an appeal under Section 260A of the Act before this High Court (being ITA No. 113/2019) and assailed the order dated 24th July, 2018. However, as the M.A. No. 742/DEL/2018 was still pending before the ITAT, this Court vide order dated 05th February, 2019, disposed of the said appeal, granting lib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner-company along with the Miscellaneous Application. In the said affidavit, it was specifically stated that the nonappearance was on account of illness of the counsel. The Tribunal, unfortunately, while dismissing the Miscellaneous Application, failed to consider the same. As regards the observation of the Tribunal regarding the failure of the counsel to point out any factual error in the final order, Mr. Kapoor argues that the same is completely unwarranted and contrary to Rule 25 of the ITAT Rules. The Petitioner is only required to show that there existed sufficient cause for non-appearance. The merits or demerits of the order passed by the Tribunal were not required to be examined at that stage. He submits that the approach of the Tribunal is contrary to the judgments of several High Courts dealing with the scope and ambit of Rules 24 and 25 of the ITAT Rules. 8. Mr. Kapoor also strongly urges that the Petitioner is interested to take recourse to the amnesty scheme Vivad Se Vishwas 2020 . He states that in the event the Court were to allow the present petition and restore the appeal to its original number, Petitioner undertakes to apply under the said scheme. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and affidavits filed in support thereof discloses sufficient cause for non-appearance. The Tribunal, has inappropriately rejected the Miscellaneous Application, without examining the merits of the said submissions. Paras 5 and 6 of the Impugned Order, as reproduced above, reveal that the Tribunal dismissed the Miscellaneous Application merely on the ground that the Petitioner had sought frequent adjournments before the matter was finally heard on 05th July, 2018. In this regard, it was also pointed out that the Miscellaneous Application was filed without much delay. In fact, as already noted, the Petitioner had also preferred an appeal under Section 260A of the Act before this Court, which was disposed of in the terms stated earlier. Thus, it cannot be said that the Petitioner has shown laxity in pursuing the said litigation. The presumption of disinterest against the Petitioner is speculative. The other factor that prevailed upon the Tribunal was the lapse of time since the first date of hearing. However, the Tribunal ignored the fact that Petitioner had approached the Tribunal in December 2018, and thus, the time gap of 2 years between the first date of hearing and the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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