· This appeal was filed by the assessee against the order of Commissioner of Income Tax (Appeals), pertaining to the assessment year 2004-05.
· When the appeal was called out, neither the assessee was present, nor any request for adjournment was placed before the Bench.
· Considering the facts and keeping in mind the provisions of Rule 19(2) of the ITAT Rules, as were considered in the case of CIT v. Multiplan India (P.) Ltd. [1991] 38 ITD 320 (Delhi), the Tribunal treated the appeal as un-admitted and dismissed as such.
· The Hon’ble Tribunal during the proceedings of miscellaneous application filed by the assessee referred to the provision of Rule 24 and 25 of the ITAT Rules, which clearly show that in the event of an ex parte decision, even on merits, once the assessee or the Revenue makes a miscellaneous application for recall, the Tribunal "shall" recall the order and decide on merits after hearing the parties.
· However, due to difference of opinion, the question of recalling the matter, which was under consideration in the said miscellaneous matter, was referred to a Third Member Bench consisting of three or more members.
· The Hon’ble Third Member Bench, thereafter, considered the matter to be squarely covered by the decision of the Apex Court in the case of CIT v. S. Chenniappa Mudaliar [1969] 74 ITR 41, and concluded that the matter was to be restored to the original number and was to be heard on merits.
For further reading, refer the attachment.
Further Reading