' Through the titled miscellaneous application, the Registered person/Applicant seeks recall of ex parte ATIR order dated 27-9-2010 recorded in STA No,960/LB of 2009. Learned counsel for the Registered Person/Applicant has apprized the Court that on 26-8-2010 Mr.Abuzar Hunain, Advocate appearing on behalf of the Registered Person/Applicant noted the next date of hearing on the case file as 27-9-2010 but inadvertently noted the said -date of hearing in his Personal Diary as 29-9- 2010. Due to non-appearance on the date of hearing i,e, 27-9-2010 the appeal of the Registered Person/Applicant was dismissed for non-prosecution by resorting to provisions contained in section 132(2) of the Income Tax Ordinance, 2001 read with Rule 20(2) of the ITAT Rules, 2005. In order to lend credence to his submissions, he has furnished before us an Affidavit. He has emphasized that, nobody can be condemned unheard. While concluding his arguments he has contended that due to dismissal of appeal for non-prosecution, the contention of the Registered Person/Applicant remained unheard, which is against established norms of justice. On the contrary, Dr. Sheryar, DR appearing on behalf of the department has opposed the contentions raised by Manager of the company and prays for rejection of titled miscellaneous application.
2. We have heard the arguments advanced by rival parties and also carefully perused the relevant record available on file. We find ourselves in agreement with the assertions made by Mr. Khubaib Ahmad, Advocate that non-appearance of the Registered Person/Applicant on the date of hearing was not willful and intentional, which is duly supported A by the affidavit. Therefore, in the interest of justice and fair play, we allow the Miscellaneous Application resulting in recalling our earlier ex parte order dated 27-9-2010. The said appeal stands restored at its original number. The Assistant Registrar (Roster) is directed to re-fix the appeal of the Registered Person/Applicant as per Roster arrangement.