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TMI Blog2023 (2) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent/revenue, accepts notice. 3. Since the matter involves the construction of Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 [in short, "ITAT Rules"], Mr Kumar says that counter-affidavit would not be necessary. Thus, with the consent of counsel for the parties, the writ petition is taken up for hearing and final disposal, at this stage, itself. 4. This writ petition seeks to lay a challenge to the order dated 07.09.2022 passed by the Income Tax Appellate Tribunal [in short "Tribunal"]. 4.1 Via the said order, the Tribunal has dismissed the Miscellaneous Application bearing no. 606/DEL/2018, whereby a prayer was made for recalling the order dated 24.01.2018 passed by the Tribunal. 4.2 The Tribunal, on 24.01.2018, dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sc. application filed under section 254(2) of the Act with a view to rectify any mistake apparent from record is to be disposed of at any time within 6 months from the end of the month in which the order was passed i.e. before 31.07.2018. In the case of the assessee the Misc. applications were filed on 24th September, 2018 which is beyond the period of 6 months for disposal of the Misc. applications set out in the provisions of section 254(2) meaning thereby the Misc. applications should have been filed before 31st July, 2018. The assessee filed petition requesting for condonation of delay in filing Misc. applications. However, nowhere in the statute provides for condonation of delay in filing Misc. applications before the Tribunal under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was not applicable for adjudicating the petitioner's application for recall of the order dated 24.01.2018. It appears, that the only avenue available to the Tribunal was as contemplated in Rule 24 of the ITAT Rules. 8.1 For the sake of convenience, the same is extracted hereafter: "[Hearing of appeal ex parte for default by the appellant. 24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant 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 hearing the respondent : Provided that where an appeal has been disposed of as provided above and the appellant appears af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules. The Tribunal, as noted above, has, in our view, taken recourse to the wrong provision i.e., Section 254 of the Act. 11. Having heard the learned counsel for the parties in some detail and examined the record, according to us, this matter may deserve a hearing on merits, for the following reason: (i) The petitioner has been denied depreciation allowance, amounting to Rs.53,31,982/- for the period in issue i.e., AY 2011-2012. According to the petitioner, the Commissioner of Income Tax (Appeals) ["CIT(A)"] had denied the depreciation allowance to the petitioner, on the ground that the subject plants had been closed, and the plant and machinery was held only for the purpose of selling the same, in pursuance of the scheme framed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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