ORDER

HON’BLE ROHIT RANJAN AGARWAL,J.

Heard Sri Rakesh Ranjan Agarwal, learned Senior Advocate assisted by Sri Suyash Agarwal, learned counsel for the petitioner and learned Standing Counsel for the State.

This writ petition has been filed assailing the ex-parte order dated 24.02.2022 and order dated 22.09.2022 passed by the first appellate authority rejecting the application of the petitioner for setting aside the ex-parte order dated 24.02.2022.

It is contended by learned Senior Counsel that the father-in-law of the counsel appearing for the petitioner before first appellate authority was suffering from cancer and could not appear on the date fixed in the matter. The first appellate authority vide order dated 24.02.2022 had dismissed the appeal by an ex-parte order and a rectification application under Section 161 of the Central Goods and Sales Tax Act, 2017 (hereinafter called as “CGST Act”) was filed which has been rejected vide order dated 22.09.2022 which is under challenge. He further contends that as the Tribunal till date has not been constituted, there is no forum for challenging the ex-parte order nor there is any provision under the CGST Act for moving a recall application. Hence, the present writ petition has been filed.

Reliance has been placed upon Division Bench judgment of this Court in case of M/s. M.P. Poddar & Company, Sheopur, Varanasi vs. Additional Judge (Revisions) Sales Tax Gorakhpur, Varanasi Camp, 1982 U.P.T.C. 117 and decision of anther Division Bench of this Court in case of Shyam Behari Tewari vs. Goods Tax Officer, Allahabad, 1985 U.P.T.C. 638.

Learned Standing Counsel while opposing the writ petition contended that application should not have been filed under Section 161 of the CGST Act as the said provision provides for rectification of error on the face of records. According to learned Standing Counsel, the remedy would have been simplicitor to file a recall application and not application under Section 161 which the first appellate authority has rightly rejected.

I have learned counsel for the respective parties and perused the material on record.

It is an accepted fact to both the parties that by order dated 24.02.2022, first appeal filed by petitioner was rejected ex-parte. The Division Bench of this Court on two earlier occasions held that where there is no provision under the Act for filing recall application, the Court exercising power under Article 226 of Constitution could intervene in the matter and direct the authorities to consider the recall application and pass appropriate order.

This Court finds that the first appellate authority was not justified in rejecting the application for recalling the ex-parte order, and thus, the order dated 22.09.2022 passed on the application rejecting the recall of the ex-parte order is hereby set aside.

The matter is remitted back to the first appellate authority providing an opportunity to the petitioner to appear before the first appellate authority on 25.01.2023. It is made clear that on the date fixed, the assessee either shall appear in person if his counsel is not available or his counsel shall appear before the authority concerned and first appellate authority after affording an opportunity shall take a fresh decision without being influenced by the earlier order passed on 22.09.2022.

In view of said fact, the writ petition stands disposed of.