2023 (3) TMI 1588 - AT - Income Tax

Ex-parte order passed - non-appearance of the assessee on the date of hearing - AR relying upon the revised Miscellaneous Application filed submitted that the assessee has not received any notice for the specific date of hearing - HELD THAT - We are satisfied that the non-appearance of the assessee on the date of hearing was not intentional or deliberate and was on account of lack of notice. Accordingly the order is recalled. Support for recalling the order is drawn from the decision of Ansal Housing and Construction 2004 (5) TMI 22 - DELHI HIGH COURT and Khaitan Paper and Industries Ltd. 2004 (4) TMI 15 - CALCUTTA HIGH COURT Said order was pronounced in the open court at the time of hearing itself in the presence of the parties. After considering the convenience of the parties the appeal is directed to be fixed for hearing on 27.04.2023.

Summary

The Appellate Tribunal (ITAT Chandigarh) allowed the assessee's Miscellaneous Application filed under section 254(2) of the Income Tax Act, 1961 read with Rule 35A of the I.T. Rules, 1963, seeking recall of the ex-parte order dated 16.09.2016 in ITA No.223/CHD/2016 for AY 2009-10, which was dismissed in limine due to non-representation. The assessee contended non-receipt of notice for the specific hearing date (15.09.2016), resulting in non-appearance. The Tribunal, relying on precedents including *ACIT Vs Ansal Housing and Construction (2005) 274 ITR 131 (Del)* and *Khaitan Paper and Industries Ltd. Vs CIT 273 ITR 234 (Cal)*, held that the non-appearance was neither intentional nor deliberate but due to lack of notice, thus justifying recall of the order. The appeal was rescheduled for hearing on 27.04.2023, with notice dispensed as the date was announced in open court. The Miscellaneous Application was accordingly allowed.