Paresh S.shah v. The Income Tax Officer 14(1)(1)And Ors

` IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1195 OF 2014 WITH WRIT PETITION NO.1238 OF 2014 Paresh S.Shah. ...Petitioner. vs. The Income Tax officer 14(1)(1)and ors....Respondents. Mr. M. Subramanian i/by V.S. Hadade for the Petitioner.Mr. P. C.Chhotaray for the Respondents. CORAM : M. S. SANKLECHA AND G.S. KULKARNI, JJ.DATE : 22 JULY 2014 DATE : PC: With the consent of the Counsel for the parties, both the petitions are being finally disposed of at the stage of admission. 2)Both these petitions under Article 226 of the Constitution of India challenges the order dated 20 September 2013 passed by the Income Tax Appellate Tribunal (“Tribunal”) dismissing the petitioner's Miscellaneous Applications for recall of a common order dated 29 November 2011 passed by the Tribunal relating to Assessment Years 1988-89 and 1990-91. 3)The grievance of the petitioner is that the impugned order dated 20 September 2013 refused to consider the petitioner's Miscellaneous Application on the ground that under the proviso to Rule 24 of the Income Tax Appellate Tribunal Rules 1963 (Tribunal Rules) the assessee has to show that there was sufficient cause for his non appearance at the hearing of the appeal which led to the dismissal of the petitioner's appeal by the Tribunal before it can be recalled. 3)In this case the appeals of the petitioner for the Assessment Years 1988-89 and 1990-91 were dismissed merely on the ground of non prosecution without having considered the merits. Thus, the petitioners filed the Miscellaneous Application under Section 254(2) of the Income Tax Act, 1961 (the Act) for rectification/recall. However, the Tribunal treated the same as an application under the proviso to Rule 24 of the Tribunal Rules and dismissed it on the ground that the same can be considered only if the petitioner is able to make out a sufficient cause for non appearance. Rule 24 of the Tribunal Rules will have no application as under that rule the Tribunal is obliged to decide the appellant's appeal on merits even in the absence of appellant. The proviso under Rule 24 of the Tribunal Rules is triggered only when appeal has been disposed of on merits and the appellant before the Tribunal seeks recall of the order disposed of under Rule 24 of the Tribunal Rules. In these petitions, admittedly the Tribunal has passed the common order dated 29 November 2011 for Assessment Year 1988-89 and 1990-91 without having considered the merits of the petitioner's appeal before it. In the circumstances, the proviso to Rule 24 of the Tribunal Rules cannot be invoked to dismiss the petitioner's Misc. Application. Thus the Tribunal has misdirected itself in having invoked Rule 24 of the Tribunal Rules to dismiss the Miscellaneous Application by the impugned order dated 20 September 2013. 4)In view of the above, the impugned oder dated 20 September 2013 dismissing the Miscellaneous application relating to orders passed for Assessment Year 1988-89 and 1990-91 is set aside. However, the Tribunal is directed to consider the petitioner's Miscellaneous Application on its own merits without taking recourse to Rule 24 of the Tribunal Rules. 5)Accordingly, both the petitions are disposed of. No order as to costs. (G. S. KULKARNI, J.) (M.S. SANKLECHA, J.)