Vijay Power Generators Ltd, New Delhi V. ITO Ward-17 (3), New Delhi

MA 356/DEL/2019

AI Insights

The case involves M/s. Vijay Power Generators Ltd., the appellant, who sought the recall of an ex-parte order passed by the Income Tax Appellate Tribunal. The ex-parte decision was made in the absence of the assessee due to their illness, which prevented them from attending the hearing or responding to the notice. The appellant's counsel argued that the Tribunal had the power to restore the ex-parte order under these circumstances, referencing Rule 24 of the ITAT Rules and a relevant decision by the Delhi High Court. The Tribunal agreed with the appellant's arguments, acknowledging the lack of proof of service of notice and the circumstances presented for non-appearance, thus allowing the recall of the ex-parte order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 121604 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 12-01-2023
• Assessment Year: 2003-2004
• Appeal Filed On: 24-04-2019
• Other Referred Cases: Om Prakash Sangwan vs. ITO (2018) 94 taxmann.com 394 (Del.)
• Laws Referred To: Income Tax (Appellate Tribunal) Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “D” DELHI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER MAs. No.355 & 356/DEL/2019 (Arising out of I.T.As. No.1140 & 3157/DEL/2008) Assessment Year 2001-02 & 2003-04 M/s. Vijay Power Generators Ltd., 60, Shardhanand Marg, Delhi. vs. ITO, Ward-17(3), New Delhi. TAN/PAN: AAACV0191N (Appellant) (Respondent) Appellant by: Shri Sanat Kapoor, Adv. Respondent by: Shri Ramdhan Meena, DR Date of hearing: 13 01 2023 Date of pronouncement: 13 01 2023 O R D E R PER PRADIP KUMAR KEDIA - A.M.: By these Misc. Applications, the assessee has urged for recalling of order dated 04.05.2017 passed in ITAs No.1140 & 3157/Del/2008 concerning Assessment Years 2001-02 & 2003-04. 2. When the matter was called for hearing, the ld. counsel for the assessee at the outset submitted that the order in ITAs No.1140 & 3157/Del/2008 was passed by the Tribunal ex-parte in the absence of the assessee. In this regard, it was pointed out that non-appearance on the due date was caused due to illness of the assessee, who was on complete bed rest apart from medication and was also not aware of any service of notice. It was thus contended that sufficient cause exists for non-appearance. Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 was also referred to and relied upon and it was submitted that the Tribunal has requisite power to restore the ex-parte order under the circumstances. It was thus M.A. No. 355/DEL/2019 2 urged that the appeal in ITAs No.1140 & 3157/Del/2008 pronounced on 04.05.2017 be recalled and re-fixed for hearing on regular date. 3. The assessee has shown circumstances for non-appearance. The Tribunal’s order is ex-parte for which proof of service of notice of hearing is not available on record. The prayer for recall of the ex-parte order by the Assessee is also supported by the decision of Hon’ble Delhi High Court in the case of Om Prakash Sangwan vs. ITO (2018) 94 taxmann.com 394 (Del.) with the aid of Rule 24 of ITAT Rules, 1963.Accordingly, the impugned ex-parte order of the Tribunal is required to be recalled to prevent miscarriage of justice. Hence, we recall the impugned order of the Tribunal passed in ITAs No.1140 & 3157/Del/2008 dated 04.05.2017 and direct the Registry to fix the appeal for fresh hearing 20.03.2023. 4. In the result, both the captioned Misc. Applications filed by the assessee are allowed. Order pronounced in the open Court on 13 th January, 2023. Sd/- Sd/- [SAKTIJIT DEY] [PRADIP KUMAR KEDIA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: January, 2023 Prabhat