Natural justice and recall under section 254(2): ex parte appellate order recalled for fresh adjudication after due hearing.

An ex parte ITAT appellate order passed without addressing a valid adjournment request and without giving effective opportunity of hearing can constitute a mistake apparent from the record under section 254(2). On that basis, the Tribunal recalled the order, allowed the miscellaneous application, and restored the matter for fresh adjudication on merits after due opportunity to the assessee, so that no prejudice is caused to the parties' rights.

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Issues: Whether the ex parte appellate order required recall under section 254(2) for violation of natural justice and whether the matter should be restored for fresh adjudication.

Analysis: The assessee had sought adjournment and asserted that the appeal was decided without effective opportunity of hearing. The order under challenge was found to have been passed on account of non-appearance, without dealing with the adjournment request and without affording a fair hearing. The absence of such opportunity was treated as a mistake apparent from the record, and the Tribunal held that the dispute should be decided on merits so that the parties' rights are not prejudiced. Considering the facts, including the assessment having been framed under sections 153C and 144, the Tribunal found it to restore the matter to the Assessing Officer for fresh consideration after due opportunity.

Conclusion: The ex parte order was recalled, the miscellaneous application was allowed, and the appeal was restored by remanding the matter to the Assessing Officer for adjudication afresh after granting due opportunity to the assessee.

Ratio Decidendi: An ex parte appellate order passed without affording a fair opportunity of hearing and without addressing a valid adjournment request can constitute a mistake apparent from the record justifying recall under section 254(2), with remand for de novo consideration on merits.

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