TaxTMI 
TaxTMI 
2020 (12) TMI 781
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....f the Constitution of India is directed against the order dated 06th November, 2020 [hereinafter referred to as the 'Impugned Order'] passed by the Income Tax Appellate Tribunal [hereinafter referred to as 'ITAT'] dismissing the Petitioner's miscellaneous application bearing M.A. No. 742/DEL/2018 [hereinafter referred to as 'Miscellaneous Application'] for recall of ex-parte final order dated 24^th July, 2018, allowing Revenue's appeal being ITA No. 2297/DEL/2014 for Assessment Year 2009-10. 4. For the year under consideration, the Petitioner filed its Return of Income [hereinafter referred to as 'ROI'] on 31st March, 2010. Based on the survey under Section 133A of the Income Tax Act, 1961 [hereinafter referred to as 'the Act'] and other....
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....was not accepted by the Tribunal. 6. Thereafter, the ITAT rejected the Miscellaneous Application vide the Impugned Order, relevant portion whereof reads as under: "3. During the course of his argument, the counsel referred to Rule 25 of the ITAT Rules and vehemently stated that it has been specifically provided that where an appeal has been disposed of ex-parte and if later on the appellant/ respondent satisfies the Tribunal that there was sufficient cause for his non-appearance, the Tribunal can set aside the ex parte order and restore the appeal. 4. Drawing support from the aforementioned Rule 25, the counsel stated that on the date of hearing the then arguing counsel was not well and therefore could not appear for th....
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....xplained in the affidavit dated 03rd December, 2018, filed by the Director of the Petitioner-company along with the Miscellaneous Application. In the said affidavit, it was specifically stated that the nonappearance was on account of illness of the counsel. The Tribunal, unfortunately, while dismissing the Miscellaneous Application, failed to consider the same. As regards the observation of the Tribunal regarding the failure of the counsel to point out any factual error in the final order, Mr. Kapoor argues that the same is completely unwarranted and contrary to Rule 25 of the ITAT Rules. The Petitioner is only required to show that there existed sufficient cause for non-appearance. The merits or demerits of the order passed by the Tribunal....
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....he record and considered the contentions urged by the learned counsel for the parties, who have been heard at length. The facts of the present case are not in controversy. On 24th July, 2018, the Tribunal decided the appeal of the Revenue on merits and ex-parte, as there was no presence on behalf of the Petitioner. Thereafter, on 03rd December, 2018, the Petitioner filed the Miscellaneous Application under Section 254(2) of the Act read with Rule 25 of the ITAT Rules, wherein explanations were provided for such non-appearance. It was accompanied by an affidavit of the Director of the Petitioner-company dated 03rd December, 2018, stating that the non-appearance was on account of the illness of the counsel. The Petitioner had also filed an af....
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....rsuing the said litigation. The presumption of disinterest against the Petitioner is speculative. The other factor that prevailed upon the Tribunal was the lapse of time since the first date of hearing. However, the Tribunal ignored the fact that Petitioner had approached the Tribunal in December 2018, and thus, the time gap of 2 years between the first date of hearing and the date of decision cannot be a compelling measure. In our view, these factors ought not to be viewed in isolation, without taking into consideration the sufficiency of reasons for non-appearance. The Petitioner had given a sufficient and cogent explanation for non-appearance of its Representative, which, however, the Tribunal has failed to take into account. Besides, in....