VIJAYA HOSPITALITY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) These appeals arise from the order of the Tribunal, for the three assessment years, 2008-09, 2009-10 and 2011-12. The order impugned is one rejecting the applications to recall an ex-parte order of the Income Tax Appellate Tribunal, finding them to be applications filed for rectification, way beyond the time permitted. The applications were rejected for reason of they having been filed beyond the six months' period as provided under Section 254(2) of the Income Tax Act, 1961 ('Act' for short).

(2.) The learned counsel for the appellant- assessee argues that there was no warrant for treating the applications as one for rectification. Though there is no specific application for restoration as provided in the Act, Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 ('ITAT Rules' for short) provides for hearing of an appeal ex-parte when there is default by the appellant and also provides for setting aside the ex-parte order and restoration of the appeal, if the Tribunal is satisfied of sufficient cause for the default; here the non-appearance of the party and the Advocate. In the present case, when appeals filed for the respective years came up for hearing before the Tribunal on 19.11.2015, they were dismissed by Annexure-D order. It was also specifically provided in the order that "if the assessee on a later stage gives explanation in regard to its non-appearance before the Tribunal on the date of hearing before the Tribunal by filing a Miscellaneous Application as per the ITAT Rules and if the Bench is so satisfied these appeals of the assessee can be recalled for hearing on merits."

(3.) We are of the opinion that the Tribunal erred insofar as treating the present applications as rectification applications. Though an application for restoration is not specifically provided; hearing of an appeal after declaring the appellant ex-parte and dismissal for reason of non-appearance of the appellant are procedural in nature and sufficient prescriptions have been made in the ITAT Rules as noticed hereinabove, for restoration and hearing the appeal on merits. In such circumstances, the applications filed ought to have been treated as one filed for setting aside the ex-parte order and the appeals ought to have been restored to be heard on merits. We also notice that there was no order on merits passed by the Tribunal at the earlier stage and the appeals were dismissed giving liberty to the appellant to restore the same on sufficient cause being shown.