The procedural remedy for recalling an appellate order is dictated by Rule 24 of the Income Tax (Appellate Tribunal) Rules, not limited by Section 254, as long as the nature of the application supports the rule's application.

JUDGMENT

Pankaj Bhatia, J.

Heard Sri Vishnu Srivastava the counsel for the petitioner, Dr. R K Mishra, the counsel for the respondent no.1 as well as Sri Neerav Chitravanshi assisted by Sri Kushagra Dikshit the counsel for the respondent no.3.

2. The present petition has been filed by the petitioner challenging the order dated 21.06.2023 passed by the opposite party no.2 whereby the recall application filed by the petitioner was dismissed on the grounds of limitation prescribed under section 254 (2) of the INCOME TAX ACT , 1961 and ignoring the provisions of Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963.

3. The submission of the counsel for the petitioner is that an order of assessment/penalty came to be passed against the petitioner on 11.03.2015 against which the petitioner preferred an appeal before the Commissioner of Income Tax (Appeals) which too was dismissed on 03.11.2016. The petitioner challenged the order of CIT (A) by filing an Appeal before the Income Tax Appellate Tribunal, Lucknow Bench. It is the case of the petitioner that the said appeal filed by the petitioner was listed for hearing on 26.06.2018, however as the notice of hearing was not served upon the petitioner, he could not appear on the said date, as a result whereof, the appeal preferred by the petitioner was dismissed for non-prosecution. While dismissing the said appeal, an observation was made by the ITAT that the assessee would be at liberty to move an application under section 254 of the INCOME TAX ACT , in case the assessee so desires.

4. It is argued that although the appeal was dismissed for want of prosecution and the remedy for recalling of the said order was prescribed under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963, however, in view of the observations made by the ITAT, while dismissing the appeal for nonprosecution, an application was filed with the title "Application under Section 254 of the INCOME TAX ACT ". The said application dated 25.02.2019, filed by the petitioner on 08.04.2019, was heard and the same was dismissed vide order dated 21.06.2023 mainly on the ground that the application has been filed beyond the limitation prescribed under Section 254 (2) of the INCOME TAX ACT , referred to in Section 253(3) and 253(4) of the Act.

5. The contention of the counsel for the petitioner is that against the dismissal of appeal for want of prosecution, the remedy of recalling the order is clearly prescribed under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963. Rule 24 is quoted herein below :

"24. Hearing of appeal ex-parte for default by the appellant.- 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 authorized 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 afterwards and satisfies the Tribunal that there was sufficient cause for his nonappearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex-parte order and restoring the appeal."

6. He argued that once a specific provision for recalling the order is provided in the Rules under which the Tribunal is supposed to work, the mention of Section 254 in the impugned order is wholly misplaced as the power under Section 254 of the INCOME TAX ACT is prescribed for rectification of errors which have been occurred in the order of the Appellate Tribunal and thus, the mention of provisions of Section 254 (2) and the limitation prescribed therein is wholly unwarranted as the application of the