By C. N. Vaze
Shailesh Kamdar
Jagdish T. Punjabi
Bhadresh Doshi
Chartered Accountants
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34. (2012) 145 TTJ 537 (Delhi) (TM)
Five Star Health Care (P.) Ltd. v. ITO A.Y.: 2006-07. Dated: 2-3-2012
Section 254(2) and Rules 23 and 25 of Income Tax (Appellate Tribunal) Rules, 1963 — Assessee’s chartered accountant having filed an affidavit stating that he did not appear at the time of hearing as he had wrongly recorded the date of hearing in his diary and also furnished a photocopy of the diary showing the wrong noting, it has to be accepted that there was sufficient cause for his non-appearance on the date of hearing.
The assessee filed a miscellaneous application for recalling the said order against the exparte order passed by the Tribunal. The only ground taken by the assessee in its miscellaneous application was that there was a bona fide reason for non-appearance on the part of the assessee on the fixed date of hearing. There was a difference of opinion between the members of the Tribunal and, therefore, the matter was referred to the Third Member u/s.255 (4). The agreed point of difference was
“Whether on facts and in the circumstances of the case, it will be appropriate in law to recall order dated 8th Oct., 2010 passed in ITA No. 1063/Del./2010”. The Third Member held that it would be appropriate to recall the ex-parte order of the Tribunal. It noted as under:
(1) Though in the miscellaneous application there is neither the mention of Rule 25, nor section 254(2), but, from the contents of the application, it is evident that it was under Rule 25 only because u/s.254(2) the assessee can request the rectification of an apparent mistake while under Rule 25, the assessee can request for the recalling of the order of the Tribunal which has been passed ex-parte due to non-appearance of the assessee.
(2) A perusal of Rule 25 shows that, as per proviso, where an appeal has been disposed of as provided in the rule and the respondent appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance on the date of hearing, the Tribunal is at liberty to recall the ex-parte order passed by it and restore the appeal.
(3) In the present case, the chartered accountant has given an affidavit. In support of the affidavit, he has also furnished the photocopy of his diary in which the hearing of the assessee’s appeal was wrongly noted as 9th September, 2010, instead of 7th September, 2010.
(4) Therefore, there was sufficient cause for nonappearance by the assessee on the date of hearing i.e., 7th September, 2010. Proviso to Rule 25 was squarely applicable and the Tribunal was justified in recalling the order of the Tribunal.
(5) Rule 23 provides the procedure to be adopted at the time of hearing the appeal. Tribunal having effectively decided the matter against the respondent-assessee by setting aside the order of the CIT(A) and restoring the matter back to the Assessing Officer without hearing the assessee, the ex-parte order of the Tribunal must be recalled as required by Rule 23 of ITAT Rules.
