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TMI Blog2014 (1) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, wherein the assessee has explained the reasons for the delay in filing these miscellaneous applications. For the sake of convenience, we extract below relevant portion of the letter cited above:- "1. The Hon. Income Tax Appellate Tribunal had disposed off the above appeals by their consolidated order dt. 13-03-2009, which was received by your petitioner on 07-04-2009. In the said order the Hon. Tribunal had disposed off the appeals by an ex-parte order, for the reason that the Petitioner had not entered appearance before the Hon. Bench for the hearing posted on various dates. The order as above was received by your Petitioner on 07-04-2009. 2. Aggrieved by the above order, your Petitioner had filed a Miscellaneous Petition for recalling the order on the submission that there has been certain unavoidable reasons for your Petitioner not entering appearance on the hearing dates as explained in the Petitions and requesting for disposal of the appeals afresh after giving an opportunity to your Petitioner of being heard in the matter. The Miscellaneous Petitions were filed on 05-04-2013 and there has been a delay of 4 years and 24 days in filing the Petitions. The said Miscellaneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner approached their Chartered Accountants one again to completely review all the records of the prior years and advise on what action could be taken to redress the heavy grievances caused on your Petitioner by an unjust order of demand. 8. This essential aspect of the true facts of the case unfortunately appears to have not been sufficiently brought to the attention of the Hon. Bench with clarity, since your Petitioner had no opportunity of being heard by the Hon Bench in view of the illness and absence of the learned Advocate. It was under these circumstances that it was decided to approach the Hon. Bench with a Miscellaneous Petition though late, in the interest of justice and fairness and to recall its ex-parte order on the appeals as above and request for the appeals to be heard by giving your Petitioner one more opportunity, for presenting the true facts of the case before the Hon. Bench. 9. Your Petitioner was also advised that under the relevant rules of the Income Tax Appellate Tribunal Rules, 1963, i.e., Rules 24 & 25, which permit filing of a Miscellaneous Petition in such cases before the Hon. Bench, there is no specific time limit specified for filing the Petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Miscellaneous Petitions were filed within 45 days of receipt of the orders of the Assessing officer as above. 11. Since absolute hardship has now been caused to your Petitioner on account of such unfair and unjust orders of the Assessing officer, your Petitioner was left with no option but to approach the Hon. Tribunal once again to be considerate and good enough to admit the Miscellaneous Petitions and decide afresh on the issue by taking into account the straight facts of the case that only the building was let out by your Petitioner without any machinery, plant or assets in the lease arrangement and in such circumstances, the income in the normal course is to be assessed under the head income from Property. 12. Your Petitioner prays that the Hon. Bench may be pleased to condone the delay and admit the Miscellaneous Petitions and recall its orders on the appeals as above and pass appropriate orders after given an opportunity to your Petitioner of being heard in the matter". 4. We heard the parties and carefully perused the record. The Ld A.R reiterated the above said submissions at the time of hearing and thereafter filed a written submission also. The assessee is an undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake an order setting aside the ex parte order and restore the appeal." Under the proviso to Rule 24 and Rule 25, the Tribunal is empowered to set aside the ex parte order and restore the appeal, if the appellant/respondent appears afterwards and satisfies the Tribunal that there was sufficient cause for non-appearance when the appeal was called on for hearing. 6. Now we shall examine the explanations given by the assessee vis-à-vis the proviso to Rule 24 and Rule 25 of the Appellate Tribunal Rules, 1963. The reasons cited by the assessee can be summarized as under:- (a) All the appeals were entrusted to the Senior Advocate Shri P. Balachandran and the assessee was under bona fide belief that the advocate was attending the hearings. The assessee was also not aware that the learned advocate had fallen sick and was seriously ill with a terminal disease. Thereafter he passed away on 26.12.2008. The junior lawyers also did not give any advice with regard to the appeals pending before the Tribunal. (b) On receipt of the order of the Tribunal, the assessee approached its Chartered Accountants, viz., M/s Varma & Varma, Chartered Accountants, Thiruvananthapuram and a view was tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot take any steps in that direction. In the instant case, we notice that the assessee has simply shirked away from its responsibility by stating that the junior lawyer did not give advice to the assessee, which we are unable to accept. All other explanations given by the assessee relate to the events that happened subsequent to the receipt of the order, which cannot be considered as a reasonable cause for non-appearance in terms of the proviso to Rule 24 and Rule 25 of the Tribunal. In any case, we notice that the assessee, after consulting its Chartered Accountants, has taken a conscious decision not to pursue the matter, may be with the belief that the consequent order that would be passed by the assessing officer to give effect to the order of the Tribunal may not be detrimental. However, since the consequential order did not turn to the expectations of the assessee, it appears that the assessee has taken the decision to file these miscellaneous applications after the expiry of four years. 9. In view of the foregoing discussions, we are of the view that the assessee has failed to show that there was a reasonable cause for non-appearance on the date of hearing of the appeal as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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