The court affirmed the power of the Tribunal to rectify its mistake and recall the order under the relevant provisions of the Income Tax Act and the Tribunal Rules.

JUDGMENT

[Physical Hearing/Hybrid Hearing (as per request)]

Rajiv Shakdher, J. (Oral)

CM APPL. 6764/2023 in ITA 78/2023

CM APPL. 6766/2023 in ITA 79/2023

1. Allowed, subject to just exceptions. CM APPL. 6763/2023 in ITA 78/2023 CM APPL. 6765/2023 in ITA 79/2023 [Applications filed on behalf of the appellant seeking condonation of delay of 100 days in re-filing the appeal]

2. These are applications filed on behalf of the appellant/revenue seeking condonation of delay in re-filling the appeals.

3. According to the appellant/revenue, there is delay of 100 days.

4. For the reasons given in the applications, the delay in re-filling the appeals is condoned.

5. The applications are disposed of in the aforesaid terms.

ITA 78/2023

ITA 79/2023

6. These appeals are directed against order dated 01.04.2022 passed by the Income Tax Appellate Tribunal [in short, "Tribunal"] concerning MA No. 756 preferred in ITA 6208/Del/2015 and MA No. 755 preferred in ITA 6207/Del/2015.

6.1. ITA 78/2023 concerns Assessment Year (AY) 2009-10, while ITA 79/2023 concerns AY 2008-09.

7. The appellant/revenue is aggrieved by the fact that via the aforementioned order the Tribunal has recalled its order dated 26.10.2018 which was passed on merits.

8. Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the appellant/revenue, says that since the above-referred applications were filed by the respondent/assessee under Section 254(2) of the Income Tax Act, 1961 [in short, "Act"], the Tribunal could not have recalled the order dated 26.10.2018, as the same was rendered on merits.

9. A careful perusal of the record would show that the Tribunal, while noting the appearances of the representatives of the parties, had noted the following:

9.1. This was, clearly, a mistake made while noting the appearances of the parties.

10. Insofar as the impugned order is concerned, the Tribunal was persuaded to recall the order dated 26.10.2018, as the respondent/assessee had asserted that it had not received notice of the date when the concerned appeals were fixed for hearing.

10.1. In support of this plea, [as recorded in paragraph 2 of the impugned order], an affidavit of the Director of the respondent/assessee was filed. This aspect [as recorded by the Tribunal in paragraph 3 of the impugned order], was not controverted by the appellant/revenue.

10.2. Given this position, the Tribunal observed in paragraph 4 the impugned order that the appellant/revenue had placed no material before it which would suggest that the reasons given by the respondent/assessee for non-appearance, on the date fixed for hearing, were false.

11. Having regard to the aforesaid position, the Tribunal went on to hold that it was a well-settled principle of law that opportunity of hearing should be accorded to the disputants and that no disputant should be condemned unheard. Accordingly, the Tribunal, in the interest of justice, recalled its ex parte order [i.e., order dated 26.10.2018] which had been passed on merits.

12. As noted hereinabove, there was certainly a mistake in recording the appearances in the matter.

12.1. Besides this, even if, for the moment, we were to agree with Mr Kumar that the order could not have been recalled by the Tribunal by taking recourse to Section 254(2) of the Act, we are, certainly, of the view that this was an incidental and ancillary power available to the Tribunal. [See Income Tax Officer, Cannanore v M.K. Mohammed Kunhi, AIR 1969 SC 430.]

12.2. That said, under Section 254(2) of the Act, the Tribunal has the power to rectify an error which emanated from a mistake committed by it. The mistake can arise from an act of omission or commission. In this case, the Tribunal failed to notice that the respondent/assessee did not have information concerning the date fixed for hearing in the appeal.

12.3. Given this position, contrary to what Mr Sanjay Kumar has contended, the Tribunal could have corrected i