Tribunal dismisses application to recall order under Income Tax Act

The Tribunal dismissed the miscellaneous application filed by the assessee under section 254(2) of the Income Tax Act, 1961, seeking to recall an ex-parte order due to non-attendance. The application was rejected due to a significant delay of 4 years and 78 days from the order date, lack of satisfactory explanation for the delay, and failure to substantiate the reasons for non-attendance. The Tribunal emphasized its limited power to rectify mistakes, not to review or rewrite orders, and held that the original order stands. The application was deemed not maintainable, and the Tribunal's decision remained unchanged.

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Issues Involved:
1. Filing of miscellaneous application under section 254(2) of the Income Tax Act, 1961.
2. Justification for non-attendance at the date of hearing.
3. Timeliness and maintainability of the miscellaneous application.
4. Tribunal's power to review its own order.
5. Explanation for delay in filing the miscellaneous application.

Issue-wise Detailed Analysis:

1. Filing of miscellaneous application under section 254(2) of the Income Tax Act, 1961:
The assessee filed a miscellaneous application under section 254(2) of the Income Tax Act, 1961, seeking to recall the ex-parte order passed by the Tribunal due to non-attendance at the hearing. The application was filed on the grounds that the assessee's mother was ill, which diverted the family’s attention, resulting in the non-attendance.

2. Justification for non-attendance at the date of hearing:
The assessee claimed that his absence on the date of the hearing was due to his mother’s illness. An affidavit was submitted in support of this claim. However, the Tribunal noted that no medical certificate or documentary evidence was provided to substantiate the illness of the assessee’s mother.

3. Timeliness and maintainability of the miscellaneous application:
The Tribunal observed that the miscellaneous application was filed after a delay of 4 years and 78 days from the date of the ex-parte order. According to the amended section 254(2) of the Act, effective from 1.6.2016, the period for filing such an application is within six months from the end of the month in which the order was passed. Consequently, the Tribunal held that it had no jurisdiction to entertain the application due to the considerable delay and the failure of the assessee to explain each day’s delay as required by law.

4. Tribunal's power to review its own order:
The Tribunal emphasized that its power under section 254(2) is limited to rectifying any mistake apparent from the record and does not extend to reviewing or rewriting its own order. The Tribunal referred to the judgment of the Hon'ble Madras High Court in Express Newspapers Ltd. vs. DCIT, which clarified that the Tribunal’s power is to amend an order to rectify an apparent mistake, not to review it. The Tribunal reiterated that recalling the entire order would imply passing a fresh order, which is beyond its jurisdiction.

5. Explanation for delay in filing the miscellaneous application:
The Tribunal cited the Supreme Court’s ruling in Balwant Singh v. Jagdish Singh & Ors., which discussed the principles of condonation of delay and ‘sufficient cause’ under the Limitation Act. The Tribunal noted that the assessee failed to provide a satisfactory explanation for the delay. The Tribunal also referred to its own decision in the case of Shri Harish Jhamnani vs. ITO, where it was held that the conduct of the assessee, bona fide reasons, and whether the delay could have been avoided by exercising due care are crucial factors in deciding such applications. The Tribunal found that the assessee's conduct was not bona fide and dismissed the application for condonation of delay.

Conclusion:
The Tribunal concluded that the miscellaneous application filed by the assessee was not maintainable due to the significant delay and lack of sufficient cause. The application was dismissed, and the Tribunal’s original order remained unchanged. The judgment was pronounced in open court on 16th September 2016.

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