- (1.) BY this petition under Art. 226 of the Constitution of India, the petitioner CIT, Kanpur, challenges an order dt. 25th Feb., 1987, passed by the Tribunal, Allahabad, by which it recalled its order dt. 22nd Aug., 1984, passed in Appeal No. 2127 of 1982.
(2.) I have heard Sri Bharat Ji Agarwal, learned senior standing counsel for the petitioner, and Sri S. P. Mehrotra, learned counsel for the assessee respondent. The respondent, Manna Lal and Sons (P.) Limited, was the appellant in the aforesaid appeal that was listed on 21st Aug., 1984, before the Tribunal, for the first time, for hearing. The assessee respondent, which is located at Kanpur, sent an application for adjournment stating that it has not been able to instruct its counsel fully and the appeal be adjourned to some other date. The application was received in the office of the Tribunal on 18th Aug., 1984, and the senior member of the Bench directed the same to be put up before the concerned Bench on the date of hearing. The Bench rejected the application and heard the appeal in the absence of the appellant and the same was partly allowed by order dt. 22nd Aug., 1984. Subsequently, the assessee moved an application praying that the order dt. 22nd Aug., 1984, be recalled. It was stated in the application that the companys chairman was involved in a number of litigations and he could not instruct counsel fully about the appeal and having sent the application, he was under the belief that the hearing would be adjourned and that he would receive intimation of the next date of hearing. The appellant had no local counsel who could attend the Tribunal to find out the fate of the adjournment application. The Tribunal stated in paragraph 3 of its order as under : 3. It is submitted by the assessees learned counsel that it is indeed a hardship if the assessee is not getting an opportunity of being heard by the Tribunal particularly when as stated in the affidavit, the said chairman came to the Tribunals office from Kanpur on 18th Aug., 1984, when the Assistant Registrar concerned was out of station and, therefore, the petition for adjournment was handed over to the Office Superintendent, Shri Khatri, who marked the petition to Mr. Bhagwan Das, dealing clerk, who in his turn is stated to have assured the assessee that due to heavy listing on 21st Aug., 1984, the case would be adjourned. It is also stated that on 20th Aug., 1984, the assessee had a telephonic talk with the then Assistant Registrar, who assured that the case fixed for 21st Aug., 1984, would be adjourned. It is, therefore, submitted that the assessee was of the bona fide belief that the case would be adjourned on 21st Aug., 1984. In the circumstances, it is urged that the assessee was prevented by sufficient cause from recording his presence on 21st Aug., 1984. It is, therefore, prayed that the order of the Tribunal may be recalled, so that the assessee may be given an opportunity of being heard afresh.
(3.) THEN , it allowed the application by observing as under : 6. We have gone through the entire facts of the case for our consideration. It is seen that the appeal by the assessee was fixed for the first time and the assessee had applied for adjournment much earlier on the ground that the assessee could not brief the counsel finally. The assessee is at Kanpur and claimed to have no means to know that application for adjournment had been rejected and that it had a bona fide belief that case would be adjourned as it had been fixed for the first time only. The grievance of the assessee is that it has been deprived of reasonable opportunity of being heard to place its materials and arguments, etc., before the Tribunal. Thus, considering the back ground and the entirety of the facts and circumstances of the case, we are of the opinion that to meet the ends of natural justice, the assessee should be given a reasonable opportunity of being heard. We are of the view that this is a fit case under the peculiar circumstances of the case that we should recall the order for fresh hearing which we hereby do. The Assistant Registrar will fix the case for fresh hearing in due course.;