R.S. Pathak, J. - (1.) I agree with my brother Mukerjee that this petition must be allowed with costs and the order dated, 19 -1 -1968, made by the Addl. Commissioner must be quashed.
(2.) The Addl. Commissioner has proceeded principally on the view that the Respondents were not afforded an opportunity by the Collector to produce evidence in support of their objection. It appears to me that there is no basis for taking that view. There is nothing on the record to show that such opportunity was not available to the Respondents in the proceedings before the Collector. The Petitioners say, in para 13 of the petition, that various dates were fixed by the Collector for recording the evidence of the Income -Tax Department and no evidence was produced by that department. In para 14 of the counter -affidavit filed on behalf of the State Bank of India it is averred that no objection was made nor was any right reserved by the Union of India to lead any evidence. A review application was filed by the Union of India before the Collector and that application was dismissed on 31 -3 -1968 by the Collector who pointed out that it was the duty of counsel for the Union of India to have applied for a date for the examination of witnesses and that instead counsel had proceeded to argue the case on the merits. The counter -affidavit filed on behalf of the Union of India does not controvert what is stated in the petition in this regard. Indeed, in reply to para 17 of the petition stating that various dates had been fixed for recording the evidence of the income tax Department the counter -affidavit, in para 15, states that The case did not require any oral evidence as the matter was dependent on the documents on record. The Addl. Commissioner himself has not indicated anything in his order to show how the Union of India was not allowed an opportunity to produce evidence. The principal basis on which the Addl. Commissioner made the impugned order cannot be sustained. Moreover, several points for the decision of which he remanded the case had already been considered and disposed of by the Collector.
(3.) Accordingly, I would agree with my brother Mukerjee that the Addl. Commissioner has manifestly erred ill the exercise of his jurisdiction in making the order of remand.;