MEHAR SINGH, J. - (1.) THIS is a petition under Arts. 226 and 227 of the Constitution. The facts are not much in dispute.
(2.) THE petitioners are the legal representatives of Bilbhadar Mal Kuthiala, who, on 24th Aug., 1948, was assessed to income -tax by the ITO, A Ward, Amritsar. The assessee preferred an appeal against the assessment order, which appeal was heard by the Addl. AAC and dismissed on 20th March, 1949 (Annexure 'B'). The assessee went in second appeal to the Tribunal, respondent No. 2. The appeal was sent under registered cover. The petitioners aver that nothing was heard of the appeal by the assessee until on 7th Feb., 1950, a copy of the order of 13th Dec., 1949, of respondent No. 2, dismissing the appeal in default of appearance of the assessee, was received by the assessee. An application was then moved by the assessee on 13th Feb., 1950, before respondent No. 2 for setting aside the order of respondent No. 2 and for restoration of the appeal for disposal according to law after hearing the assessee. The ground taken in the application, supported by an affidavit of the assessee, was that the assessee never received the registered letter purporting to inform him of the date of hearing of the appeal, that the postal authorities never presented that letter to him, and that he never refused to receive any such letter. The application not having been expeditiously disposed of, the assessee moved another application (Annexure 'G') before respondent No. 2 under S. 66(1) of the Indian IT Act, 1922, for drawing up a statement of the case and referring to the High Court questions of law mentioned therein. On 27th Oct., 1950, the first application of the assessee was dismissed by respondent No. 2 (Annexure 'H'). The Judicial Member of respondent No. 2 found that the registered cover addressed to the assessee having been returned marked as "refused", there was a presumption of proper and due service upon the assessee and proceeded to observe that "so far as the Tribunal is concerned, there is no requirement that they must get these notices served. What all they are required to do is to give opportunity to the assessee of being heard. This at any rate I am satisfied has been done in this case." He then held that respondent No. 2 had ample powers to dispose of the appeal because of the absence of the assessee. He further held that "there can be no doubt that the Tribunal had decided that there was no power of review inherent in it. If an authority were needed for that proposition, the ruling in 1950 I. T. R. page 509 (sic.) is ample. That being the position to seek to get round that correct legal position by invoking vague, undefined inherent powers would not, in my opinion, be proper." The Accountant Member of respondent No. 2 observed that "whether an opportunity of being heard was given in this case to the assessee is a matter which can be agitated in a reference application if the assessee so desires. I am not convinced that the Tribunal has any inherent powers of reviewing their own order."
(3.) ON the second application of the assessee, respondent No. 2 on 24th Jan., 1954, drew up a statement of the case in accordance with the provisions of S. 66(1) of the Indian IT Act, 1922, and framed two questions of law for determination by the High Court (Annexure 'I'). Those two questions were : "(i) Where a properly addressed registered letter, postage prepaid, is returned by the post office with an endorsement by a postman - -'Inkariwala hai' - -(in the category of refusal), does a presumption arise of due service of the letter on the addressee ? and, following as a corollary, (ii) If the answer to the above question is in the negative, whether the order of the Tribunal, dismissing the appeal for default, is not liable to be recalled on the ground that it is null, as the appellant had not been given an opportunity of being heard in support of his appeal ?" ;