2022 (8) TMI 1338 - AT - Income Tax

Tribunal grants recall of order under Income Tax Act for fresh hearing: Fair opportunity ensured

Saleem Mohd. Nazir Shaikh Versus Dy. Commissioner of Income Tax Circle-5 (1), Mumbai

The Tribunal allowed the assessee's Miscellaneous Application, recalling the ex-parte order dated 25/09/2018 under section 254(1) of the Income Tax Act, ... Ex–parte order passed - absence of representation on behalf of the assessee - only one notice was issued through registered A/D to the assessee intimating the date of hearing, which was returned unserved by the postal authorities - HELD THAT:- From the perusal of the record, we find that the present Miscellaneous Application is getting listed since February 2019. We further find that on several initial hearings, the present Miscellaneous Application was adjourned at the request of the assessee. We also find that since 12/02/2021, till last date of hearing, no one appeared on behalf of the assessee despite issuance of notice by registered post A/D. It is only pursuant to our direction vide order sheet dated 08/07/2022, whereby notice was directed to be issued also to the Authorised Representative who had once appeared for the assessee and whose address was noted from various adjournment letters filed initially on behalf of the assessee that the learned A.R., Shri K. Gopal, appeared and argued the present Miscellaneous Application on behalf of the assessee. A.R. also gave an undertaking that he will be appearing in the appeal hearing as and when the same is listed. In view of the submissions made in the Affidavit supporting the present Miscellaneous Application, we are of the considered view that there was sufficient cause for non–appearance on behalf of the assessee when the appeal was called for hearing. Therefore, we deem it fit and appropriate to recall the aforesaid ex–parte order passed in assessee’s appeal for fresh hearing of the appeal on merits. Issues:1. Recall of ex-parte order dated 25/09/2018 under section 254(1) of the Income Tax Act, 1961.2. Non-appearance of the assessee during the initial hearing.3. Submission of a Miscellaneous Application seeking recall of the order.4. Consideration of the reasons for non-appearance by the assessee.5. Decision on the recall of the ex-parte order and scheduling a fresh hearing.Analysis:1. The Miscellaneous Application was filed by the assessee to recall the ex-parte order dated 25/09/2018, passed under section 254(1) of the Income Tax Act, 1961, by the Co-ordinate Bench of the Tribunal in the assessee's appeal for the assessment year 2014-15. The order was passed as none appeared on behalf of the assessee during the initial hearing.2. The learned A.R. submitted that the assessee's appeal was decided ex-parte due to non-appearance, as the notice of hearing was returned unserved since the assessee and family members were out of Mumbai. The Miscellaneous Application sought a fresh hearing on merits, emphasizing that there was no change in the assessee's address.3. The learned D.R. opposed the recall, noting that no one appeared on behalf of the assessee during previous hearings. However, the Tribunal considered the submissions and material on record, finding that the first notice of hearing was not received by the assessee due to being out of station, as supported by an Affidavit filed by the assessee.4. The Tribunal observed that the Miscellaneous Application had been listed since February 2019, with several adjournments granted at the assessee's request. Despite repeated notices, no appearance was made on behalf of the assessee until a direction was issued to the Authorised Representative to appear. The Tribunal acknowledged the reasons for non-appearance and deemed it appropriate to recall the ex-parte order for a fresh hearing based on the submissions and the undertaking given by the learned A.R.5. Consequently, the Tribunal allowed the assessee's Miscellaneous Application, recalling the ex-parte order and scheduling a fresh hearing on 10/10/2022. The date was set convenient for both parties, with the service of notice dispensed with due to the pronouncement in the open Court, ensuring a fair opportunity for the assessee to present their case.