2019 (4) TMI 91

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....s requested the following: 2. On a careful reading of the order, it is found that the appeal filed by the assessee has been allowed without considering the following:- a. The present order under consideration is order dated 16.04.2018. It is, however, seen that earlier, vide order dated 23.08.2016, the SMC Bench of ITAT had actually held appeals filed by assessee as defective and therefore dismissed both the appeals of the assessee as un-admitted. The assessee was given liberty to file an application for recalling of orders after removal of defects. b. The present order dated 16.4.2018 was again passed by the single member bench. This order appears to be oblivious of the first order dated 23.08.2016. It simply sta....

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....h the Hon'ble ITAT with a request to recall order dated 16.04.2018 in the instant case and to pass a recall order subject to assessee removing defects therein and after recall, to consider and deal on merits. The grounds for filing Miscellaneous Application is annexed herewith. 3. I have heard both the counsel and perused the records. As regards the issues raised in ' a' and 'b', even at the cost of repetition, I reproduce the submissions of the Revenue as under: a. The present order under consideration is order dated 16.04.2018. It is, however, seen that earlier, vide order dated 23.08.2016, the SMC Bench of ITAT had actually held appeals filed by assessee as defective and therefore dismissed both the appeals of the assesse....

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....der, the ITAT cannot pass afresh order. 5. In this conspectus of the matter, when order dated 23/8/2016 was duly recalled, the said order was duly communicated to the department and the Revenue was duly represented in the hearing of the appeal and there was no whisper by the ld. DR in that hearing that earlier order had not been recalled, the insinuation that ITAT passes order in a state of oblivion to the facts and antecedents to the appeal, displays a totally irresponsible and cavalier approach on the part of Revenue on the cusp of contempt and deserving exemplary cost to purge the same. Furthermore, it is elementary knowledge that an appellate order has to be prefaced with the grounds or questions raised. Referring in a deriding manne....