Recall of ex parte order requires consideration of non-service and sufficient cause before rejecting delay condonation

A tribunal cannot reject a recall or delay-condonation plea arising from an ex parte appellate order without examining whether the order was ever served and whether the delay was explained by non-service. Where the application specifically asserts that the assessee had no communication of the order and later acted on obtaining a certified copy, a summary rejection on the ground of lapse of time reflects non-application of mind. The order was therefore unsustainable and was set aside, with the matter remitted for fresh decision in accordance with law.

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Issues: Whether the Tribunal was justified in rejecting the application for recall and condonation of delay without considering the plea that the ex parte appellate order had not been communicated to the assessee and that the delay was attributable to non-service of the order.

Analysis: The dispute arose from an assessment for assessment year 2009-2010, where the second appeal had been decided ex parte and the assessee later moved for recall after obtaining a certified copy. The application specifically pleaded that the order had never been served as required under the Uttar Pradesh Value Added Tax Rules, and that the delay was explained by the absence of communication. The impugned order did not deal with these grounds in substance and merely rejected the application on the ground of lapse of time. Such rejection, without examining the reasons offered for the delay and the absence of service, amounted to non-application of mind. The reasoning adopted in the cited precedent supported the view that a tribunal has the power to set aside an ex parte order and re-hear the matter where a party was prevented from appearing or was otherwise denied a fair opportunity.

Conclusion: The rejection of the recall application was unsustainable and was set aside. The matter was remitted to the Tribunal to decide the application afresh in accordance with law.

Final Conclusion: The assessee succeeded in obtaining remand of the recall application for fresh adjudication, and the Tribunal was directed to decide it expeditiously.

Ratio Decidendi: A tribunal cannot reject a recall or delay-condonation request arising from an ex parte order without considering the explanation for non-service and the grounds showing sufficient cause; failure to do so renders the order vulnerable for non-application of mind and warrants remand.

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