Ex-parte order after If the appellant shows up with enough justification, the tribunal may revoke the ex-parte order
Fact and issue of the case
Allowed, subject to just exceptions.
Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the respondent/revenue, accepts notice.
Since the matter involves the construction of Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 [in short, “ITAT Rules”], Mr Kumar says that counter-affidavit would not be necessary. Thus, with the consent of counsel for the parties, the writ petition is taken up for hearing and final disposal, at this stage, itself.
This writ petition seeks to lay a challenge to the order dated 07.09.2022 passed by the Income Tax Appellate Tribunal [in short, “Tribunal”].
Via the said order, the Tribunal has dismissed the Miscellaneous Application bearing no. 606/DEL/2018, whereby a prayer was made for recalling the order dated 24.01.2018 passed by the Tribunal.
The Tribunal, on 24.01.2018, dismissed the appeal preferred by the petitioner, on the ground of non-prosecution.
A perusal of the said order shows that the Tribunal noted that the petitioner had been served, and thus, no purpose would be served in issuing a fresh notice.
In the very same order i.e., the order dated 24.01.2018, the Tribunal also observes, that it would treat the appeal as not being admitted, and in this regard, the Tribunal has taken recourse to Rule 19 of the ITAT Rules.
Observation of the court
As would be evident, the Tribunal seems to have taken recourse to the provisions of Section 254 of the Act. The Tribunal has alluded to the fact that since rectification of mistake, apparent from the record, can be made within six months from the end of the month in which the concerned order was passed, the petitioner’s application for recall of the order dated 24.01.2018 could not have been entertained.
In this context, the Tribunal has fixed two points i.e., the date on which the petitioner’s miscellaneous application was filed i.e., 24.09.2018, and when the six-month period expired, commencing from the end of the month in which the order was passed i.e., 31.07.2018. Having noticed these dates, the Tribunal has concluded that under Section 254 of the Act, it had no power to condone the delay qua the application for recall of its order, which was filed beyond six months.
Furthermore, in our view, while there was delay, the appellant seems to have furnished some reasons for explaining the delay. Broadly, the reasons given were that the notice of hearing issued by the Tribunal for the hearing on 24.01.2018 was misplaced, and did not reach the concerned officer of the petitioner, which according to the petitioner, was the primary cause for non-attendance on the said date. Furthermore, as per the petitioner, it was unaware of the passing of the dismissal order dated 24.01.2018, and only came to know about the same only on 05.02.2018. The petitioner also contends, that the inadvertent delay in filing the miscellaneous application was caused on account of the concerned persons in the Department being temporarily transferred to a plant outside Delhi, and some persons retiring during the relevant period.
Having regard to the aforesaid, in our opinion, the appeal deserves to be heard on merits.
Accordingly, the impugned order dated 07.09.2022 is set aside. The matter is remitted to the Tribunal for disposal of the petitioner’s statutory appeal on merits.
The Registry will dispatch a copy of the judgment passed today to the Tribunal via all modes, including e-mail.
Parties will act based on the digitally signed copy of the order.
In the result, appeal of the assessee is allowed and ruled in favour of the assessee
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