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2011 (2) TMI 961 - AT - Income TaxPower of rectification u/s 254(2) - Tribunal dismissed miscellaneous appeals for want of prosecution - appellants pleaded for recall of the ex parte orders passed on different dates by the Tribunal precisely on the ground that each one of them was prevented by "sufficient cause" from prosecuting the appeals - Held that:- In all the instant cases, all the appeals were admitted for hearing and none of the appeals was decided on merits. The grounds raised therein were never considered and decided by the Tribunal. Also, no opportunity of being heard was provided to the assessees/applicants and the appeals were dismissed for want of prosecution. Hence there is a mistake apparent from the record and the Tribunal should set aside the orders and restore the appeals for hearing. It is clear that whatever may be punishment given to the striking Lawyers, the litigants should not suffer because of such strike, the ex parte order should be recalled. However, we are of the view that strike by the Advocates should be condemned in strong words. It is the duty of Advocates and Chartered Accountants not to boycott the Income-tax Appellate Tribunal and ask the Tribunal to desist from discharging judicial functions. At any rate, no Advocate can ask the Court to avoid a case on the ground that he does not want to appear in that Court Tribunal while exercising the power of rectification u/s 254(2) can recall its order in entirety if it is satisfied that prejudice has resulted to the party, which is attributable to the Tribunal's mistake, error or omission and which error is manifest error and it has nothing to do with the doctrine or concept of inherent power. In all cases where the Court is satisfied that the ex parte order (passed due to the absence of the Advocate pursuant to any strike call) could be set aside on terms, the Court can as well permit the party to realize the cost from the Advocate concerned without driving such party to initiate another legal action against the Advocate. Thus all the Miscellaneous Applications are allowed.
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