2004 (4) TMI 15

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....owing two questions: 1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal unlawfully and unjustly dismissed the appeals relating to the assessment years 1985-86 and 1986-87 ex parte thereby denying the assessee the opportunity of being heard and further compounded the injustice by declining to recall such ex parte order of dismissal despite the proof of the fact of the advocate's sickness incapacitating him to attend the hearing, the appellant-assessee not being at fault; and 2. Whether it is not appropriate and not consonant to law and justice to decline to recall the order having been passed without consideration of the reasoning of the Commissioner of Income-tax (Appeals) for deleting the add....

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....rejected the applications on one aspect of the matter, namely, that the assessee ha filed the applications for restoration of the appeals on wrong, false an contradictory statements made in the application. It was urged that the affidavits of counsel along with prescription of the attending physician of the relevant dates which were enclosed with the application has been completely overlooked. Reliance was placed upon the judgments in Joseph Michael and Brothers v. ITAT [1993] 199 ITR 466 (Ker) and ITO v. Murlidhar Sarda [1975] 9 ITR 485 (Cal). The two judgments relied upon by Mr. Bagchi arise out of applications filed under article 226 of the Constitution. There can be n dispute that the Tribunal has the power to recall its previous order....