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2018 (11) TMI 1325 - AT - Income TaxRestoration of appeal - Application u/s 254 - Appeal rejected as non prosecuted - Misc. application filed beyond the time limit prescribed under section 254(2) - Held that:- By considering the application filed by the assessee and also considering the argument of the ld. counsel for the assessee, we are of the opinion that there is a sufficient cause for not to appear in this appeal when it was posed. We also find that the Misc. Application filed by the assessee is after 98 days of passing of the exparte order, is a reasonable period, in which the assessee approach the Tribunal. In our opinion, this being an exparte order, assessee should be given opportunity and the order has to be passed on the merits of the case. In this case, no merits have been considered, simply dismissed the appeal. In our opinion, not only in the interest of justice and also on the grounds of principles of natural justice, these appeals deserve to be recalled. ITAT did not decide the appeal on merits as it is mandated to but rather rejected for non-prosecution. In the present case also, the appeals filed by the assessee's are dismissed for non-prosecution. The Misc. Applications filed by the assessee are only recalling of the exparte order, it is neither for rectification nor for any amendment. Therefore, under these facts and circumstances of the case, we find that the judgment of the Hon'ble Delhi High Court in the case of Om Prakash Sangwan [2018 (5) TMI 1789 - DELHI HIGH COURT] is squarely applies to the facts of the present case. Misc. Applications filed by the assessee are allowed.
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