TMI Blog2018 (11) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Vakalatnama earlier and sought adjournment, has been changed. Now, he filed Vakalatnama therefore submitted that when the date is given, he is ready to appear before the Tribunal. 3. Ld. counsel for the assessee has submitted that the Misc. Applications filed by the assessees under Rule 24 of the ITAT Rules, 1963 does not stipulate any time limit and this being exparte order, it has to be recalled. To support his argument, relied on the decision of the Delhi High Court in the case of Om Prakash Sangwan vs. ITO [(2018) 94 taxmann. com 394 (Delhi)]. 4. On the other hand, ld. Departmental Representative strongly opposed for recalling of the order. 5. We have heard both the parties, perused the material available on record. 6. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Delhi High Court in the case of Om Prakash Sangwan (supra) has held that as per Rule 24 of the ITAT Rules, 1963, the ITAT has to decide the appeals or matters before it on the merits. In these circumstances, the ITAT failed to do so, implies that it exceeded its jurisdiction and instead of deciding on the merits, rejected the appeal merely for non-prosecution. In the given circumstances and keeping in view of the fact that Rule 25 does not stipulate any period of limitation, within which the aggrieved party can approach the Tribunal, and directed the assessee to approach the Tribunal, in such an event further directed the ITAT to pass orders. The Hon'ble Deli High Court has also considered section 254(2) of the IT Act and obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period mentioned in Section 254(2) of the Act only applied when the Tribunal notices the error and decides to proceed ahead to rectify it and per se does not indicate any limitation within which the aggrieved party (assessee or Revenue) can approach it. He relied upon the judgments of the Allahabad High Court titled Vijay Kumar Ruia v. CIT [2011] 334 ITR 38 and Gujarat High Court titled Liladhar T Khushlani v. Customs 2017 (351) ELT 36 this purpose. This Court is of the opinion that those judgments cannot afford the appellant any comfort. Section 254(2) of the Act was advisably amended to curtail extended period of four years which had been provided to either class of litigants to approach the ITAT for a rectification. In this case, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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