Recall of ex parte tribunal order upheld for sufficient cause of non-appearance, despite dissent on impermissible review

A Tribunal majority treated the miscellaneous application as one seeking recall of an ex parte order under Rule 25 of the ITAT Rules, holding that wrong noting of the hearing date, supported by the chartered accountant's affidavit and diary entry, constituted sufficient cause for non-appearance. It further held that the respondent was entitled to a hearing and that recall in these circumstances would not amount to an impermissible review. The ex parte order was therefore recalled and the application allowed. A dissenting Member viewed the application as not disclosing any mistake apparent from the record under section 254(2) and considered recall to be a prohibited review.

---

---

Issues: Whether the ex parte order of the Tribunal should be recalled on the ground that the respondent was prevented by sufficient cause from appearing on the date of hearing.

Analysis: The majority held that the miscellaneous application was, in substance, one under Rule 25 of the Income-tax Appellate Tribunal Rules, 1963, as it sought recall of an ex parte order on the ground of non-appearance. The affidavit of the chartered accountant and the diary entry supported the explanation that the hearing date had been wrongly noted, and this constituted sufficient cause for non-appearance. It was further held that, in the circumstances of the appeal, the respondent was entitled to a hearing and that recalling the ex parte order would not amount to an impermissible review.

Conclusion: The ex parte order was rightly recalled and the miscellaneous application was allowed.

Dissenting Opinion: The Accountant Member held that the application did not disclose any mistake apparent from the record under section 254(2) of the Income-tax Act, 1961, that the appeal had already been decided on merits after considering the written submissions, and that recalling the order would amount to a prohibited review. On that view, the application was liable to be dismissed.

---