Bharti Airtel Limited Vs ITO (TDS) (ITAT Indore)
Conclusion: Tribunal could not recall and restore an appeal dismissed ex parte under Rule 24 of the ITAT Rules, 1963, when assessee filed miscellaneous applications after a lapse of 14 years without establishing sufficient cause for non-appearance, and where service of the original order was presumed under section 27 of the General Clauses Act as the term “afterwards” used in Rule 24 of the ITAT Rules provided procedural flexibility but did not grant an indefinite timeline. To successfully recall an ex parte order, an assessee carried the absolute burden to prove the exact, justifiable reasons that prevented their appearance on the scheduled date of the hearing.
Held: Assessee filed appeals before the ITAT for the Assessment Years 2007-08 and 2008-09. On February 8, 2011, the Tribunal called the appeals for hearing, but assessee failed to appear, resulting in an ex parte dismissal of the appeals. ITAT Registry dispatched the ex parte dismissal order via registered post on February 21, 2011, as substantiated by the official Registry report and its enclosures. After a prolonged silence lasting 14 years, assessee filed miscellaneous applications before the Tribunal, seeking the recall and restoration of the 2011 ex parte order. In these applications, assessee omitted any factual explanations or averments addressing its non-appearance on the specific hearing date of February 8, 2011. Assessee submitted an affidavit denying the receipt of the 2011 order but failed to provide any corroborative evidence demonstrating non-delivery or postal failure. It was held that assessee completely failed to provide a sufficient cause or explanation for its absence on February 8, 2011, it failed to meet the mandatory requirements of the proviso to Rule 24 of the ITAT Rules for setting aside an ex parte order. While the proviso to Rule 24 contained the expression “afterwards,” this wording could not be stretched or expanded to permit an egregious delay of 14 years, especially since section 254(2) contemplated a strict time limit of six months for rectifying mistakes. Since the Registry’s records proved the order was properly addressed and dispatched via registered post, and assessee offered no evidence of non-delivery, a presumption of valid service was rightly drawn under section 27 of the General Clauses Act. Consequently, the miscellaneous applications were dismissed entirely in favor of the revenue.
