Section 161 of the CGST Act, 2017—Rectification of errors —The petitioner challenged the ex-parte 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. The Counsel for the petitioner submitted that the father-in-law of the counsel appearing for the petitioner was suffering from cancer and could not appear on the date fixed in the matter. A rectification application under Section 161 was filed which has been rejected vide order dated 22.09.2022. He placed reliance upon the Division Bench judgment in case of M/s. M.P. Poddar & Company, Sheopur, Varanasi vs. Additional Judge (Revisions) Sales Tax Gorakhpur, Varanasi Camp. The court observed that 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. The first appellate authority was not justified in rejecting the application for recalling the ex-parte order.

Held that:- The Hon’ble High Court set aside the order dated 22.09.2022 passed on the application rejecting the recall of the ex-parte order and remitted the matter back to the first appellate authority providing an opportunity to the petitioner to appear before the first appellate authority on 25.01.2023. On fixed date, 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.