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TMI Blog2024 (12) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... he same. It was prayed that in view of aforesaid circumstances, as he could not find time to prepare the case, an adjournment may kindly be granted for one month. However, it appears that the said application was not brought to the attention of Hon'ble Members and the appeals were dismissed for non-prosecution on 16.05.2011, without any decision on merits. Against the said order, the assessee, through her representative, filed Misc. Applications numbered 19 to 23/Alld/2011 pointing out that she was unable to represent the case through her counsel as the counsel was busy with the marriage of his younger son and had filed an adjournment application in this regard on 10.05.2011. It was further pointed out that the appeal had been fixed for hearing for the first time on 12.05.2011. Thus, the statement in the order in para 2, that no application seeking adjournment was filed was an incorrect fact. It was further argued that the ITAT could not have dismissed the appellant's appeal ex parte without going into the merits of the case, by rejecting the adjournment applications and not considering all the grounds taken in the appeal memo, written submissions and other documents which were on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, Lucknow had already been disposed of by the Hon'ble Allahabad Bench of the ITAT on 12.07.2018 and that the said Tribunal order had been sent by speed post on 30.08.2013 to the address of the said assessee at Lucknow, as made available by the assessee at the time of filing of Misc. Applications and the said Tribunal order had not returned unserved. Thus, no such appeals were pending in the ITAT, Allahabad Bench, for which transfers of cases to ITAT, Lucknow could have been made. Following the receipt of this letter, the ld. AR filed a letter on 30.12.2020, submitting that no order had been received at the address of Dr. Shanti Tripathi which was on record. He therefore, requested for certified copies of the said orders. Subsequently, reminders were filed by him on 18.01.2021 and 9.02.2022. In the final reminder, it was submitted that the power of attorney holder of the assessee, Dr. Shanti Tripathi had expired on 2.09.2021 at the age of 90 years, after a prolonged illness. It was further submitted that the ex parte orders which were stated to have been sent again on 29.01.2021, had not been received by her and no evidence of the same had been sent to her on her address or on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter at Allahabad and once again the misc. applications, which were fixed for hearing on 24.04.2015, 15.12.2017 and 6.07.2018 were dismissed without any decision on the merits, on account of inability of the assessee to get herself represented. However, copies of these notices and orders had not been served upon the representative assessee and it was only when she moved another application for transfer of the matter to Lucknow, that she was informed that the said misc. applications stood disposed on 12.07.2018. Since, the representative assessee did not have a copy of the order, applications were made for supplying of certified copy but the same were not received until after her death and until her daughter and the subsequent representative assessee Dr. Nishi Pandey, filed an application in this regard. Once the certified copies had been received, the present sets of misc. applications had been filed without delay. Ld. AR also submitted that once an appeal or an application had been filed by the assessee, it was the duty of the Hon'ble Tribunal to decide the case on merits and in support of such arguments, he drew our attention to the decision of the Hon'ble Madhya Pradesh Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Smt. Manjulaben C. Tomar vs. ITO, Ward-12(3), Ahmedabad in M.A. No. 238/Ahd/2019 wherein a misc. application was admitted after a period of 678 days on account of the provisions of Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963. 7. We have duly heard both the parties and considered the legal precedence. We observed that the original appeal was disposed of without dealing with the merits of the case and only for the reasons that the assessee was not represented on the only date of hearing. We have also observed that the assessee was handicapped in making appearance on that date on account of the marriage ceremony of the son of her erstwhile counsel which was scheduled around the same time. Thus, there appear to be justified reasons to explain the non-appearance before the ITAT in the original WTA Nos. 1 to 5/Alld/2010. We also observe that subsequent to the dismissal of her case for non-pursuit, the assessee filed a misc. application on 4.08.2011 and before the said had been taken up for hearing, on 7.06.2014 filed a letter with the ITAT, Allahabad Bench requesting for transfer of all her matters to ITAT, Lucknow Bench in view of her inability to get them effectively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, it is not an application seeking rectification in the order passed by the ITAT in terms of section 254(2) of the Act, but an application seeking a recall of ex parte order in terms of Rule 24 of the Income Tax (Appellate Tribunal) Rules. The limitation for moving an application prescribed under section 254(2) of the Act, therefore, does not apply to the present case. A similar view has been taken by the ITAT Ahmedabad Bench in the case of Smt. Manjulaben C. Tomar vs. ITO, Ward-12(3), Ahmedabad in M.A. No.238/Ahd/2019 dated 21.04.2022. While taking such a view, the Hon'ble ITAT Ahmedabad Bench has relied upon the order of the Hon'ble Delhi High Court in the case of Om Prakash Sangwan in ITA No. 625/2018 and C.M. Appl 21436/2018, ITA No. 626/2018 & C.M. Appl 21437/2018 in which their Lordships have as under:- "Learned counsel for the appellant sought to impress upon the Court that the 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 Alla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese miscellaneous applications, we observe that the circumstances indicate that the representative assessee was unaware of such disposal and recall the Hon'ble Supreme Court's observation in the case of Collector of Land Acqusition vs. Mst. Katiji & Ors 1987 AIR 1953 that ordinarily a litigant does not stand to benefit in lodging an appeal date and refusing to condone a delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated and further that, there is no presumption that delay is occasioned deliberately on account of culpable negligence or on account of malafide, because a litigant does not stand to benefit by resorting to delay. 10. Be that as it may, in view of the fact that we have already held that this is not a case of rectification of mistake, but of recall of an order decided ex-parte and without consideration of merits, in accordance with the provisions of Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 for which no timelines are prescribed, We recall the orders passed in WTA Nos. 01 to 05/Alld/2010 passed on 16.05.2011 and restore the appeals to their original position. Registry may fix a fresh da ..... 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