TMI Blog2018 (11) TMI 1612X X X X Extracts X X X X X X X X Extracts X X X X ..... h Sangwan [ 2018 (5) TMI 1789 - DELHI HIGH COURT] is squarely applies to the facts of the present case. we allow the Misc. Applications filed by the assessees and recall the exparte order. - M.A.Nos. 03 to 09/VIZ/2018, M.A.No.10/VIZ/2018 I.T.A.No. 143/VIZ/2014 (Arising out of I.T.A.Nos. 168 to 174/VIZ/2014) (Assessment Years : 2004-05 to 2010-11) - - - Dated:- 16-11-2018 - ShrI V. Durga Rao And Shri D.S. Sunder Singh, JJ. Appellants by: Shri G.V.N. Hari - Advocate Respondent by: Smt. Suman Malik Sr. DR ORDER V. Durga Rao, By filing these Misc. Applications, both the assessees seek recall of the combined exparte order passed by this Tribunal in I.T.A.Nos. 168 to 174 143/V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessees are dismissed exparte by order dated 21/03/2017. Subsequently, the assessee has filed Misc. Application on 06/01/2018 which is beyond the time limit prescribed under section 254(2) of the Act. The assessee filed an application before us under Rule 24 of the ITAT Rules, 1963 and submitted that exparte order may be recalled. In this application, it was stated that the assessee s earlier counsel not attended before the Tribunal due to heavy pressure work in the Income Tax Department. The ld.counsel for the assessee further submitted that the assessee has changed his earlier counsel and the present counsel is ready to appear, the date on which case is posed for hearing. By considering the application filed by the assessee and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rectification. In this case, the ITAT did not decide the appeal on merits as it is mandated to but rather rejected for nonprosecution. In the present case also, the appeals filed by the assessees are dismissed for non-prosecution. The Misc. Applications filed by the assessees 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 find that the judgment of the Hon'ble Delhi High Court in the case of Om Prakash Sangwan (supra) is squarely applies to the facts of the present case. The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the submissions of the parties. In this case, the ITAT did not decide the appeal on the merits as it is mandated to but rather rejected for non-prosecution. 3. Rule 24 of the Income Tax Appellate Tribunal's Rules and the other provisions of both the Income Tax Act and Rules indicate that the ITAT has to decide the appeals or matters before it on the merits. In these circumstances, the ITAT's failure 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 the fact that Rule 25 does not stipulate any period of limitation within which the aggrieved party can approach the Tribunal, it is open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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