Ex parte appellate order recalled where non-appearance was due to lack of notice and no deliberate default

An ex parte appellate order was recalled because the assessee had not received notice of the hearing, and its non-appearance was found to be neither intentional nor deliberate. The Tribunal accepted that the absence resulted from lack of notice rather than default by the assessee, and held that recall was justified to ensure an effective opportunity of hearing. The miscellaneous application was therefore allowed, and the earlier dismissal for non-representation was set aside.

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Issues: Whether the ex parte appellate order deserved recall under section 254(2) on the ground that the assessee had not received notice of the hearing and its non-appearance was neither intentional nor deliberate.

Analysis: The assessee sought recall of the earlier dismissal for non-representation, asserting absence of notice for the relevant hearing date. The Revenue did not oppose the request. On the record and the parties' submissions, the Tribunal found that the absence of the assessee on the hearing date was attributable to lack of notice and not to any deliberate default. In such circumstances, recall was warranted to secure an effective opportunity of hearing.

Conclusion: The ex parte order was recalled and the assessee's miscellaneous application was allowed.

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