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2016 (7) TMI 64 - MADRAS HIGH COURT

2016 (7) TMI 64 - MADRAS HIGH COURT - TMI - Power of ITAT to recall its order which was disposed of ex-parte - revenue raised the objections that the same shall be amount to review - Held that:- Proviso to Rule 25 provides that "provided that where an appeal has been disposed of as provided above and the respondent appears afterwards and satisfies the tribunal that there was sufficient cause for his non appearance when the appeal was called on for hearing, the tribunal shall make an order settin .....

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e revenue. - Tax Case (Appeal). Nos. 952 to 954 of 2013, M. P. Nos. 1 to 1 of 2013 - Dated:- 21-6-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. J. Narayanasamy For the Respondent : Mr. M. Vaidyanathan JUDGMENT [ Judgment of the Court was made by S. Manikumar, J. ] Correctness of the common order made in M.P.Nos.30 to 32/Mds/2013 in ITA Nos.1378 to 1380/Mds/2012 respectively, of Income Tax Appellate Tribunal, 'C' Bench, Madras, dated 03.05.2013 is challenged in the .....

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ioner of Tax Appeal No. XI, Chennai for the assessment year 2007-08, four appeals have been filed in ITA Nos.1377 to 1380/Mds/2012 by the department in respect of four assessees. Before ITAT 'C' Bench, Chennai, the Assistant Commissioner of Income Tax, Circle XI, Chennai, appellant therein was represented by the departmental representative. There was no appearance on behalf of the assessees, either in person or through representative. Going through the material on record, ITAT 'C' .....

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filed by the Commissioner of Income Tax, Chennai. 3. Though, Mr.J.Narayanasamy learned standing counsel for the Income Tax Department vehemently argued that the tribunal ought not to have recalled the common order, made by it in ITA Nos.1377 to 1380/Mds/2012 dated 27.11.2012, decided on merits, we are not inclined to accept the said contentions for two reasons. 4. Firstly, in exercise of the powers conferred by sub-section (5) of Section 255 of the Income Tax Act, 1961, (43 of 1961), the Appell .....

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assessees In the given situation, Rule 25 of the Income-Tax (Appellate Tribunal) Rules, 1963 reads thus. "Where, on the date fixed for hearing or any other day to which the hearing may be adjourned, the appellant appears and the respondent does not appear in person or through an authorised representative when the appeal is called on for hearing, the tribunal may dispose of the appeal on merits after the hearing the appellant." 5. Reading of the above, makes it clear that when the resp .....

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t cause for his non appearance when the appeal was called on for hearing, the tribunal shall make an order setting aside the exparte order and restore the appeal." 6. By virtue of the proviso to Rule 25 of the Income-Tax (Appellate Tribunal) Rules, 1963, added by notification No.F-71, Ad(AT)/2002 dated 01.06.2004, a right is conferred on the respondent to seek for recalling of the order passed exparte, even though the same is on merits. 7. The expression, "as provided above", in t .....

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