TaxTMI 
TaxTMI 
2004 (5) TMI 22
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....Tribunal, inter alia, requesting to recall the order on the ground that the said order was ex parte contending that the assessee could not remain present narrating the grounds which were accepted by the Tribunal. Learned counsel for the Revenue raised a question that the Tribunal has no power to review the entire order by placing reliance on a decision of the Division Bench of this court in J.N. Sahni v. ITAT [2002] 257 ITR 16 wherein the Division Bench considered the decision of CIT v. Ramesh Chand Modi [2001] 249 ITR 323 (Raj) and while disagreeing observed as under: "The Tribunal has merely the power to amend its order. While exercising the said power it cannot recall its order. The expression 'amendment' must be assigned its true mean....
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...., considered the question but on different facts. In that case, the assessee, for the profits earned in transferring his entire holdings on December 21, 1954, was assessed for the assessment year 1956-57 under section 10(5A) of the Indian Income-tax Act, 1922. The appeal against the order of assessment was dismissed and the assessee approached the Tribunal, where the appeal was dismissed for default of appearance on August 28, 1958, under rule 24 of the Income-tax Appellate Tribunal Rules, 1946. An application for restoration, filed five weeks thereafter was rejected. On rejection of a reference application by the Tribunal, the applicant-assessee approached the High Court and the High Court directed the Tribunal to state the case on two que....
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....he court that the provisions contained in the Act about making a reference on questions of law to the High Court will be rendered nugatory, if any such power is attributed to the Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default, without making any order thereon in accordance with section 33(4) of the Indian Income-tax Act, 1922. The court pointed out that insofar as questions of fact are concerned, the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The court pointed out that advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed a proper order under section ....
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....ar to, and identical with the powers of an appellate court under the Civil Procedure Code. Assuming that for the aforesaid reasons, the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of rule 24. It clearly comes into conflict with sub-section (4) of section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule, it is the rule which must give way to the provisions of the Act. We would accordingly affirm the decision of the Special Bench of the High Court and hold that the answer to the question which was referred was rightly given in the affirmative." Keeping the aforesaid as....
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....not present when the appeal was called for hearing, would not absolve the Tribunal from deciding the appeal on merits on the basis of material on record. That in fact the Tribunal did. The decision taken by the Tribunal in the absence of the respondent is not an ex parte decision or decree as understood under the Code of Civil Procedure or in a civil court and if it is a decision on merits, we fail to see how we can review or set aside the same. Recalling the order passed on merits would in fact amount to setting aside or reviewing an order decided on merits. In doing so, the Tribunal would be exercising a power which is not vested in it by law. We do not think that in such a situation rule 41 of the CEGAT (Procedure) Rules, 1982, could be ....