The High Court (HC) of Delhi, in its significant judgement, directed the Income Tax Appellate Tribunal (ITAT) to re-adjudicate the appeal by Cement Corporation of India Ltd.
Cement Corporation of India Ltd, the petitioner challenged the order dated 07.09.2022 passed by the Income Tax Appellate Tribunal. It is the petitioner’s assertion, that the order dated 24.01.2018 was received by it on 05.02.2018.
The Commissioner of Income Tax (Appeals) [“CIT(A)”] had denied the depreciation allowance to the petitioner, on the ground that the subject plants had been closed, and the plant and machinery were held only to sell the same, in pursuance of the scheme framed by the Board for Industrial and Financial Reconstruction (BIFR) constituted under the Sick Industrial Companies (Special Provisions) Act, 1985.
The tribunal has alluded to the fact, that since rectification of the mistake, apparent from the record, can be made within six months from the end of the month in which the concerned order was passed, the petitioner’s application for recall of the order dated 24.01.2018 could not have been entertained.
It was evident that the application moved by the petitioner was not moved to rectify any mistake apparent from the record, or even to amend any order. The petitioner simply sought a recall of the order dated 24.01.2018, whereby the appeal was dismissed for non-prosecution.
A perusal of the said Rule seems to convey, that if on the date fixed for the hearing, or on any other date to which the hearing is adjourned, the appellant does not appear in person or through an authorized representative, when the appeal is called out for hearing, the Tribunal may dispose of the appeal on merits, after hearing the respondent.
Furthermore, the proviso appended to the Rule indicates, that where an appeal has been disposed of on merits, and the appellant appears thereafter, the Tribunal may set aside the ex parte order and restore the appeal if it is satisfied that there was sufficient cause for his non-appearance.
The petitioner contended that the inadvertent delay in filing the miscellaneous application was caused on account of the concerned persons in the Department being temporarily transferred to a plant outside Delhi, and some persons retiring during the relevant period.
Justice Rajiv Shakdher and Justice Tara Vitasta Ganju opinioned that the appeal deserves to be heard on merits and set aside the impugned order. Further, the matter is remitted to the Tribunal for disposal of the petitioner’s statutory appeal on merits.
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