TMI Blog2021 (4) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... t the illegality committed. In the circumstances, notwithstanding the delay on the part of the petitioner in impugning the order dated 10th December, 2015, the same has but to be quashed and cannot be sustained. We are unable to agree with the contention of the counsel for the respondent, that the action of the ITAT, of dismissing the appeal for non-prosecution instead of on merits and of refusal to restore the same notwithstanding applications of the petitioner, is merely an irregularity. We have enquired from the counsels, whether the Rules aforesaid provide for any limitation for applying under the proviso to Rule 24, for setting aside/recall of an ex parte order albeit on merits. The counsels are unanimous, that for making an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1. The petition impugns, (a) the order dated 23rd December, 2020 of the Income Tax Appellate Tribunal (ITAT), New Delhi, of dismissal of M.A. No. 118/DEL/18 filed by the writ petitioner in ITA No. 3844/DEL/2013 for Assessment Year 2008-09; as well as, (b) the order dated 10th December, 2015 of dismissal of ITA No. 3844/DEL/2013; and, seeks adjudication on merits of ITA No. 3844/DEL/2013. 2. We have heard the counsel for the petitioner and the counsel for the respondent appearing on advance notice. 3. Considering the nature of the controversy, the need to call for a counter affidavit is not felt. 4. The petitioner preferred ITA No. 3844/DEL/2013 aforesaid before the ITAT, for Assessment Year 2008-09. However the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence could not appear when the appeal was listed on 10th December, 2015; (vi) that the petitioner, in effect was seeking rectification of the order dated 10th December, 2015; (vii) that under Section 254(2) of the Income Tax Act, the petitioner has time period of four years to apply for restoration of the appeal, on providing sufficient reasons for non-appearance; (viii) however Section 254(2) had been amended with effect from 1st June, 2016 and after amendment, any miscellaneous application had to be filed within six months from the date of the order; (ix) though as on the date of the order dated 10th December, 2015, the petitioner had time period of four years to file an application under Section 254(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on merits of the case, by the ITAT, is essential for the High Court to hear an appeal; and, (iii) the proviso to Rule 24 enables the appellant, who was not present at the time when the appeal was disposed of, to apply to the ITAT for setting aside of the ex parte order and for restoring the appeal for hearing. 9. In the present case, admittedly, there is no adjudication by the ITAT on merits. In our opinion, the order dated 10th December, 2015 of the ITAT, dismissing the appeal of the petitioner for non-prosecution and not on merits, as the ITAT was required to do notwithstanding the non-appearance of the petitioner when the appeal was called for hearing, is violative of Rule 24 supra and thus void. Though the petitioner applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act w.e.f 1st June, 2016, is prospective or retrospective, does not arise inasmuch as the application filed by the petitioner in March, 2017, also invoking, Rule 24 of the ITAT Rules, was within time and could not have been dismissed applying the provisions of limitation applicable to Section 254(2) of the Act; rather, we entertain doubt whether in the face of the specific provision in the Rules, an application for setting aside of an ex-parte order would at all lie under Section 254(2) of the Act. However, the need for us to adjudicate finally on the said aspect is also not felt in the facts of the present case. 14. We have however enquired, how B. N. Bhattacharjee supra relied upon by the ITAT, held to the contrary. 15. We are inf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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