M/s. Accord Overseas Pvt. Ltd., Delhi V. ITO, New Delhi

MA 64/DEL/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4722 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 20-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “D” DELHI BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER MA. No.64/DEL/2020 (Arising out of I.T.A. No.5207/DEL/2015) Assessment Year 2006-07 Accord Overseas Pvt. Ltd., B-31/2, Wazirpur, Indl. Area, New Delhi. vs. ITO, Ward-1(3), New Delhi. TAN/PAN: AABCA8860G (Appellant) (Respondent) Appellant by: Shri Anil Jain, CA Respondent by: Shri Sanjay Kumar, Sr.DR Date of hearing: 08 04 2022 Date of pronouncement: 19 04 2022 O R D E R PER PRADIP KUMAR KEDIA - A.M.: By this Misc. Application, the assessee has urged for recalling of order dated 13.03.2019 passed in ITA No.5207/Del/2015 concerning Assessment Year 2006-07. 2. When the matter was called for hearing, ld. counsel for the assessee at the outset submitted that the substantive order in the Revenue appeal in ITA No.5207/Del/2015 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 non receipt of notices for hearing. The assessee changed its business premises, and therefore, notices were remained unserved on the changed address. The hearing of the appeal was fixed on 08.11.2018 which was again re- fixed on 31.01.2019 owning to non-appearance from the assessee. The matter was re-fixed yet again on 31.01.2019 at the behest of the Revenue. No information of M.A. No. 64/DEL/2020 2 the change in date was made available to the assessee. The Tribunal proceeded on the premise that assessee is not seriously interested in pursuing appeal which is not true. The order of the ITAT which is subject matter of rectification also came to the knowledge of the assessee-company belatedly on 31.10.2019 when recovery notice was served on the Director. The assessee took immediate steps to collect the order from the Tribunal and certified copy of the order was obtained by moving application dated 12.12.2019. The MA was eventually filed on 21.02.2020. It was thus contended that sufficient cause exists for non-appearance. Rule 25 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 urged that the appeal of the Revenue in ITA No.5207/Del/2015 pronounced on 13.03.2019 be recalled and re-fixed for hearing on regular date and controversy raised in aforesaid appeal be decided after taking into account the counter stance of the assessee in the Revenue appeal. 3. Ld. DR on the other hand contended that the Tribunal has passed the order on merits and thus has become functus officio and hence cannot recall its order in the absence of apparent mistakes contemplated under Section 254(2) of the Act. It was asserted that a recall of order passed on merits, notwithstanding it being ex- parte, tantamounts to review of the existing order in the garb of rectification which is not permissible. 4. We have dispassionately considered the rival submissions. 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. Hence, it is a case of passing the order in violation of sacrosanct principles of natural justice which, in itself, is mistake ‘apparent from record’ contemplated under Section 254(2) of the Act. 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 ITA No.5207/Del/2015 dated M.A. No. 64/DEL/2020 3 13.09.2019 and direct the Registry to fix the appeal for fresh hearing in due course. 5. In the result, the Misc. Application filed by the assessee in the Revenue appeal is allowed. Order pronounced in the open Court on 19 th April, 2022. Sd/- Sd/- [CHALLA NAGENDRA PRASAD] [PRADIP KUMAR KEDIA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19 th April, 2022 Prabhat