2012 (3) TMI 603 - AT - Income Tax

Tribunal recalls ex parte order under Rule 25 for non-appearance: limits of Section 254(2) clarified (2)

Five Star Health Care (P.) Ltd. Versus Income-tax Officer

The Tribunal concluded that the ex parte order should be recalled under Rule 25 of the ITAT Rules, 1963, due to the sufficient cause shown for the ... - 1. ISSUES PRESENTED and CONSIDEREDThe core legal question in this judgment revolves around whether it is appropriate in law to recall an ex parte order passed by the Tribunal due to non-appearance of the respondent, based on the provisions of Rule 25 of the ITAT Rules, 1963, and Section 254(2) of the Income Tax Act, 1961. The specific issues include:Whether the application filed by the assessee should be treated under Rule 25 or Section 254(2).Whether there was sufficient cause for the non-appearance of the respondent on the date of hearing.Whether the Tribunal's power under Section 254(2) includes recalling an order in its entirety.The interpretation and application of Rule 23 and Rule 25 of the ITAT Rules, 1963.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Application Treatment under Rule 25 or Section 254(2)Relevant Legal Framework and Precedents: Section 254(2) allows rectification of any apparent mistake, while Rule 25 provides for recalling an ex parte order if sufficient cause for non-appearance is shown.Court's Interpretation and Reasoning: The Third Member concluded that the application should be treated under Rule 25, as the assessee sought to explain the non-appearance rather than pointing out any apparent mistake in the order.Key Evidence and Findings: The application focused on the non-appearance due to a mistaken note of the hearing date, supported by an affidavit and diary entry.Application of Law to Facts: The application was considered under Rule 25, allowing for the recall of the ex parte order if sufficient cause is demonstrated.Treatment of Competing Arguments: The Judicial Member supported recalling the order based on Rule 25, while the Accountant Member viewed it under Section 254(2), focusing on the absence of an apparent mistake.Conclusions: The application was appropriately treated under Rule 25, allowing for the recall of the ex parte order.Issue 2: Sufficient Cause for Non-AppearanceRelevant Legal Framework and Precedents: Rule 25 provides for recalling an order if the respondent shows sufficient cause for non-appearance.Court's Interpretation and Reasoning: The Third Member accepted the explanation of the mistaken date entry as a bona fide error, constituting sufficient cause.Key Evidence and Findings: The affidavit from the Chartered Accountant and the diary entry supported the claim of mistaken date noting.Application of Law to Facts: The Tribunal found that the mistake was genuine and not an afterthought, justifying the recall under Rule 25.Treatment of Competing Arguments: The Accountant Member considered the affidavit self-serving, while the Judicial Member and Third Member found it credible.Conclusions: There was sufficient cause for the non-appearance, justifying the recall of the order.Issue 3: Tribunal's Power Under Section 254(2)Relevant Legal Framework and Precedents: Section 254(2) allows rectification of apparent mistakes but does not explicitly provide for a review or recall of orders.Court's Interpretation and Reasoning: The Tribunal's power under Section 254(2) is limited to correcting apparent mistakes, not recalling orders unless there is a manifest error.Key Evidence and Findings: The application did not allege any apparent mistake in the Tribunal's order.Application of Law to Facts: The recall was not justified under Section 254(2) as no apparent mistake was identified.Treatment of Competing Arguments: The Accountant Member emphasized the limited scope of Section 254(2), while the Judicial Member focused on Rule 25.Conclusions: The recall was not justified under Section 254(2), but Rule 25 provided the appropriate basis.Issue 4: Interpretation of Rule 23 and Rule 25Relevant Legal Framework and Precedents: Rule 23 outlines the hearing procedure, while Rule 25 allows for recalling ex parte orders.Court's Interpretation and Reasoning: Rule 23 requires hearing both parties unless the appeal is to be dismissed. Rule 25 allows recall if the respondent shows sufficient cause for non-appearance.Key Evidence and Findings: The Tribunal did not hear the respondent before deciding in favor of the appellant (Revenue).Application of Law to Facts: The Tribunal's decision to recall was based on the necessity to hear both parties, as the appeal was decided against the respondent.Treatment of Competing Arguments: The Accountant Member viewed the respondent's hearing as discretionary, while the Judicial Member and Third Member emphasized the necessity of hearing both parties.Conclusions: The Tribunal must hear both parties unless dismissing the appeal, supporting the recall under Rule 25.3. SIGNIFICANT HOLDINGSVerbatim Quotes of Crucial Legal Reasoning: 'The hearing of both the parties is fundamental to the dispensation of justice. No party can be condemned unheard.'Core Principles Established: The Tribunal must hear both parties unless the appeal is to be dismissed; Rule 25 allows recall if sufficient cause for non-appearance is shown.Final Determinations on Each Issue: The application was appropriately treated under Rule 25; there was sufficient cause for non-appearance; the recall was justified under Rule 25, not Section 254(2); and both parties must be heard unless the appeal is to be dismissed.