9911796707
TMI Blog2004 (4) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing two questions: 1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal unlawfully and unjustly dismissed the appeals relating to the assessment years 1985-86 and 1986-87 ex parte thereby denying the assessee the opportunity of being heard and further compounded the injustice by declining to recall such ex parte order of dismissal despite the proof of the fact of the advocate's sickness incapacitating him to attend the hearing, the appellant-assessee not being at fault; and 2. Whether it is not appropriate and not consonant to law and justice to decline to recall the order having been passed without consideration of the reasoning of the Commissioner of Income-tax (Appeals) for deleting the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the applications on one aspect of the matter, namely, that the assessee ha filed the applications for restoration of the appeals on wrong, false an contradictory statements made in the application. It was urged that the affidavits of counsel along with prescription of the attending physician of the relevant dates which were enclosed with the application has been completely overlooked. Reliance was placed upon the judgments in Joseph Michael and Brothers v. ITAT [1993] 199 ITR 466 (Ker) and ITO v. Murlidhar Sarda [1975] 9 ITR 485 (Cal). The two judgments relied upon by Mr. Bagchi arise out of applications filed under article 226 of the Constitution. There can be n dispute that the Tribunal has the power to recall its previous orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee cannot be allowed to take advantage of the wrong statements. The fact, however, remains that the Tribunal has not considered the other evidence placed before it, namely, the affidavit of learned counsel which is said to have been enclosed with the application for restoration and xerox copy whereof is at page 33 of the paper book. The question, therefore, that arises is as to whether there was sufficient cause made out for non-appearance of learned counsel on the adjourned date of hearing on November 25, 1999, to warrant the restoration of the appeal and for disposal of the same on the merits after hearing learned counsel for the assessee. As this question has not been adverted to or dealt with by the Tribunal in its order under appeal t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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