|The Tax Publishers2020 TaxPub(DT) 5606 (Del-HC) : (2021) 430 ITR 0291 : (2021) 279 TAXMAN 0194
CONSTITUTION OF INDIA, 1950
Article 226 Rule 25
Where the appeal of revenue was decided ex parte and in the absence of assessee and later the assessee filed miscellaneous application for recall of ex parte order then ITAT was not justified in declining to entertain miscellaneous application without going into merits.
Appeal (ITAT) - Recalling of ex parte order - Tribunal decided appeal of the revenue on merits and ex parte, as there was no presence on behalf of the petitioner -
The Tribunal decided the appeal of the Revenue on merits and ex parte, as there was no presence on behalf of the Petitioner. Thereafter, the Petitioner filed the Miscellaneous Application under section 254(2) of the Act read with Rule 25 of the ITAT Rules, wherein explanations were provided for such non-appearance. It was accompanied by an affidavit of the Director of the Petitioner-company stating that the non-appearance was on account of the illness of the counsel. It was explained that N, partner at BN & A, was looking after the appeal proceedings. He suddenly fell ill on account of dengue fever and was, therefore, unable to attend the office for 15 days. In these circumstances, he could not pass on the instructions to his office or to NB to attend the proceedings before the ITAT. The ITAT however, dismissed miscellaneous application. Held: The assessee was prevented by sufficient cause from appearing before the ITAT when the appeal was taken up for hearing. Further, the Tribunal has taken into consideration such reasons which were not germane for deciding the Miscellaneous Application. The sufficiency of the cause, which was the only factor to be examined, has been ignored by the Tribunal. If sufficient cause is shown, the Tribunal is obligated to consider the same and make an order setting aside the ex parte, order, irrespective of the fact that the final order decided the appeal on merits. 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.
REFERRED : Kalra Papers (P) Ltd. v. ITO [ITA 113/2019 & CM Nos.5197-98/2019, dt. 5-2-2019] and ITO v. Kalra Papers (P) Ltd. [ITA No. 2297/Del/2014, dt. 24-7-2018].
FAVOUR : In assessee's favour
A.Y. : 2009-10
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