- (1.) This appeal is by the Revenue and is directed against an order passed in this Court by our learned brother Sabyasachi Mukharji, J. disposing of an application under Article 226 of the Constitution by directing the Appellate Income-tax Tribunal to consider the application for restoration of the appeal that had been disposed of by the Tribunal in the absence of the appellant or his representative. The matter was brought to this Court by way of an application under Article 226. In the circumstances, against an assessment order the present respondent Murlidhar Sarda had preferred an appeal which was pending before the Income-tax Appellate Tribunal, 'D' Bench, Calcutta. On the date fixed for hearing of that appeal the respondent Revenue was represented but no one appeared for the appellant. The Appellate Tribunal made an order in which it was mentioned that the notice fixing the date of hearing of the appeal was duly served on the 24th of December. 1969 and on the date of hearing, namely, 7th January, 1970, there was no one present for the assessee when the appeal was called on for hearing. The Tribunal accordingly proceeded to dispose of the appeal on merits after hearing the department's representative and on such hearing the Tribunal dismissed the appeal.
(2.) Thereupon on 7th March, 1970, the assessee made an application before the Appellate Tribunal praying that the appeal be restored and a fresh hearing be given to the appellant on the ground that the appellant had been prevented by reasonable and sufficient cause from appearing at the hearing of the appeal on the 7th of January, 1970, because the appellant had fallen ill and on 5th January, 1970, a petition praying for adjournment of hearing for four weeks on that ground of illness had been sent by registered post with acknowledgment due. That application for restoration of the appeal for rehearing was disposed of by the Appellate Tribunal by its order dated the 20th of June, 1970. In that order it has been said that the petition in question dated 5th January, 1970, was addressed to the Authorised Representative, Income-tax Appellate Tribunal, 50A, Gariahat Road, Calcutta, but it was not addressed to the Tribunal or the Assistant Registrar of the Tribunal due to an unfortunate mistake with the result that the petition in question was not before the Tribunal when the appeal came up for hearing. The Tribunal also said in that order that what has been submitted by the assessee may be true but the Tribunal refused the prayer to restore the appeal for the reasons stated in the order as follows :-- "The Tribunal has no power to cancel its order and to rehear the appeal when there is no mistake in its order apparent from the record."
(3.) In that state of the records the assessee made an application to this Court under Article 226 of the Constitution and obtained a Rule. In disposing of the Rule our learned brother Sabyasachi Mukharji, J. heard both sides and in consideration of the authorities placed before his Lordship he held that the "tribunal has the power and indeed the obligation to dispose of the appeal and pass such order thereon after giving both the parties in appeal an opportunity of being heard. It is necessary, therefore, that the tribunal should have all powers to ensure that the opportunity that the tribunal grants to the parties concerned is fair, adequate and proper." His Lordship also held that it is a power incidental to or ancillary to the jurisdiction given to the tribunal and that jurisdiction is inherent power in an appropriate case to give a party an opportunity of rehearing after the appeal has been disposed of in the absence of the party. His Lordship pointed out that the tribunal has not exercised that jurisdiction because the tribunal thought that it had not any jurisdiction to give such an opportunity. It was argued before the learned Judge Sabyasachi Mukharji, J. that the assessee had his remedy against the decision made in the appeal on merits by agitating its contention in a reference application or in a reference to the High Court and, therefore, the jurisdiction under Article 226 of the Constitution should not be allowed to be invoked to that assessee. The learned Judge disposed of that contention by pointing out that the tribunal had not given to the assessee an opportunity of rehearing of the appeal not because in the facts and circumstances of the case the tribunal did not consider it proper that the assessee should have no opportunity but because the tribunal thought that it had no jurisdiction to give such an opportunity. For that reason his Lordship held that the fact merely because the petitioner might have raised the contention in a reference to the High Court would not affect the petitioner's right to ask for a consideration of the appeal after giving an opportunity of being heard. In the result the reliefs prayed for by an application under Article 226 of the Constitution were granted by directing the tribunal to consider the application or the petition dated the 7th March, 1970, for restoration of the appeal and for hearing of the petitioner before the disposal of the appeal. It has been made clear in the order that the tribunal would be entitled to consider whether the petitioner is entitled to such a hearing or whether the petitioner has made out such a case before the tribunal that there were proper and sufficient causes for recalling its previous order. It was also expressly said in that order that after consideration of the said facts the tribunal would pass such an order in accordance with law as the tribunal would consider fit and proper. The Rule was made absolute to that extent.;