| The Tax Publishers2020 TaxPub(DT) 2124 (Jp-Trib) INCOME TAX ACT, 1961
Section 254
Where Tribunal had not given any finding on the merits of the issue and there was no allegation on the part of assessee regarding non-consideration of any relevant and vital facts while passing order and though assessee had not explained any plausible reason for non-appearance before Tribunal, however, even if order was recalled for giving an opportunity to assessee, no purpose would be served, therefore, there was no merit in this Miscellaneous Application of the assessee.
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Appeal (Tribunal) - Rectification of mistake - Appeal decided ex parte - non-appearance on behalf of assessee
By way of this Miscellaneous Application, assessee sought recalling of the Order of this Tribunal passed, whereby the appeal of the revenue was decided ex parte due to non-appearance of the assessee, despite the service of notice. Assessee submitted that the notice of hearing fixed on 10-12-2019 was received by assessee, however, the assessee was under the impression that Chartered Accountant (CA) is taking care of the matter, therefore, he could not either appear in person or through his authorized representative. Subsequently, assessee enquired from his C.A. about the status of the case and came to know that appeal of revenue was decided ex parte. Thus, non-appearance on behalf of the assessee was neither intentional nor deliberate but due to inadvertent and bona fide mistake on the part of assessee.Held: If an ex parte order was passed without hearing assessee then if assessee explained the reason for non-appearance to the satisfaction of the Tribunal, then the Tribunal should recall the order to give an opportunity of hearing to the assessee and decide the appeal afresh after considering the arguments and contention of the assessee. Tribunal had not given any finding on the merits of the issue and there was no allegation on the part of the assessee regarding non-consideration of any relevant and vital facts while passing order. Therefore, though assessee had not explained any plausible reason for non-appearance before the Tribunal, however, even if order was recalled for giving an opportunity to the assessee, no purpose would be served and it will be only an empty exercise as certain crucial facts have not been brought on record which required to be verified by conducting a proper enquiry at the level of AO. Therefore, there was no merit in this Miscellaneous Application of the assessee
REFERRED :
FAVOUR : Against the assessee
A.Y. :
IN THE ITAT, JAIPUR BENCH
VIJAY PAL RAO, J.M. & VIKRAM SINGH YADAV, A.M.
Virender Yadav v. ITO
M.A. No. 11/JP/2020 (Arising out of ITA No. 1340/JP/2018)
8 May, 2020
Assessee by: Rajiv Sogani, CA
Revenue by: K.C. Gupta, JCIT
Vijay Pal Rao, J.M.
By way of this Misc. application, the assessee is seeking recalling of the Order, dated 12-12-2019 of this Tribunal passed in ITA No. 1340/JP/2018 whereby the appeal of the revenue was decided ex parte due to non-appearance of the assessee despite the service of notice.
2. The learned A.R. of the assessee/applicant was submitted that the notice of hearing fixed on 10-12-2019 was received by the assessee, however, the assessee was under the impression that the Chartered Accountant (CA) is taking care of the matter, therefore, he could not either appear in person or through his authorized representative. Subsequently, the assessee enquired from his C.A. about the status of the case and came to know that the appeal of the revenue was decided ex parte. Thus, non-appearance on behalf of the assessee is neither intentional nor deliberate but due to inadvertent and bona fide mistake on the part of the assessee. The learned A.R. has further submitted that since the assessee did not communicate the date of hearing to the C.A., therefore, he could not appear before the Bench on the date of hearing. The learned A.R. has also referred to the affidavits filed by the assessee in support of the application and submitted that the impugned ex parte order passed by the Tribunal without giving an opportunity to the assessee may be recalled and the matter may be fixed for fresh hearing. IN support of his contention, he has relied upon the decision of the Hon'ble Delhi High Court in the case of CIT v. Ansal Housing and Construction Ltd. (2005) 274 ITR 131 (Del) : 2005 TaxPub(DT) 0260 (Del-HC) as well as decision of the Hon'ble Punjab & Haryana High Court in the case of CIT v. Gheru Lal Bal Chand (2004) 269 ITR 386 (P&H) : 2004 TaxPub(DT) 0850 (P&H-HC) and submitted that the Hon'ble High Court has held that when the assessee has explained a valid reason for non-appearance then even if the matter was decided on merit by an ex parte order, setting aside such an ex parte order on the ground explained by the assessee for non-attendance of hearing is justified. Thus, the learned A.R. has contended that the impugned ex parte order may be recalled for giving an opportunity to the assessee of hearing.
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