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TMI Blog2023 (3) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... e to agree with Mr Kumar that the order could not have been recalled by the Tribunal by taking recourse to Section 254(2) of the Act, we are, certainly, of the view that this was an incidental and ancillary power available to the Tribunal. [See Income Tax Officer, Cannanore v M.K. Mohammed Kunhi AIR [ 1968 (9) TMI 5 - SUPREME COURT] Under Section 254(2) of the Act, the Tribunal has the power to rectify an error which emanated from a mistake committed by it. The mistake can arise from an act of omission or commission. In this case, the Tribunal failed to notice that the respondent/assessee did not have information concerning the date fixed for hearing in the appeal. Given this position, contrary to what Mr Sanjay Kumar has contended, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. For the reasons given in the applications, the delay in re-filling the appeals is condoned. 5. The applications are disposed of in the aforesaid terms. ITA 78/2023 ITA 79/2023 6. These appeals are directed against order dated 01.04.2022 passed by the Income Tax Appellate Tribunal [in short, Tribunal ] concerning MA No. 756 preferred in ITA 6208/Del/2015 and MA No. 755 preferred in ITA 6207/Del/2015. 6.1. ITA 78/2023 concerns Assessment Year (AY) 2009-10, while ITA 79/2023 concerns AY 2008-09. 7. The appellant/revenue is aggrieved by the fact that via the aforementioned order the Tribunal has recalled its order dated 26.10.2018 which was passed on merits. 8. Mr Sanjay Kumar, learned senior standing cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, were false. 11. Having regard to the aforesaid position, the Tribunal went on to hold that it was a well-settled principle of law that opportunity of hearing should be accorded to the disputants and that no disputant should be condemned unheard. Accordingly, the Tribunal, in the interest of justice, recalled its ex parte order [i.e., order dated 26.10.2018] which had been passed on merits. 12. As noted hereinabove, there was certainly a mistake in recording the appearances in the matter. 12.1. Besides this, even if, for the moment, we were to agree with Mr Kumar that the order could not have been recalled by the Tribunal by taking recourse to Section 254(2) of the Act, we are, certainly, of the view that this was an incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restore the appeal. [Emphasis is ours] 13. As is evident from the discussion above, sufficient cause having been provided, the Tribunal felt impelled to recall its order dated 26.10.2018. It is more than well-established that even if a judicial or a quasi-judicial authority does not refer to the source of its power in support of its action, as long as the power is otherwise available, no fault can be found with the exercise of the power. This is one such instance. 14. We find no merit in the above-captioned appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court or tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under Section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply proceeding on the basis that if prejudice had resulted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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