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income-tax Officer 'F' Ward, District IV(2) and Ors. Vs. Murlidhar Sarda and Anr. (25.06.1973 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 309 of 1972
Judge
Reported inAIR1974Cal272,[1975]99ITR485(Cal)
ActsConstitution of India - Article 226; ;Income-tax Act, 1963 - Section 254
Appellantincome-tax Officer 'F' Ward, District IV(2) and Ors.
RespondentMurlidhar Sarda and Anr.
Appellant AdvocateBalai Pal and ;Ajoy Mitter, Advs.
Respondent AdvocateBhaskar Gupta, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredBangalore v. K. Y. Pilliah and Sons
Excerpt:
- .....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.....
Judgment:

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.

4. Against that order of the learned Judge the present appeal has been preferred by the Revenue under Clause 15 of the Letters Patent. At the outset we have to notice that the learned Counsel for the res-pondent Mr, Bhaskar Gupta sought to take an objection against maintainability of the appeal by contending that the order sought to be appealed against is not a judgment by which the rights of the parties in the matter before the Court have been finally decided and, therefore, it could not be appealable under Clause 15 of the Letters Patent. We see the force behind this preliminary objection by the learned Counsel for the respondent but we have heard the learned Counsel for the appellant Mr. Pal on the merits fully and we will proceed to dispose of the appeal on its merits without deciding the question that raises the preliminary objection about its maintainability.

5. Mr. Pal appearing in support of the appeal has mainly argued that the learned trial Judge should have held that an adequate alternative remedy being available to the assessee, the writ petition was not maintainable or at least should not have exercised the discretion to allow the prayers made in that writ petition. In urging that point Mr. Pal seems to have thought that the subject-matter before this Court was the decision of the tribunal in the appeal itself and that it is not correct. The matter that had been brought to this Court by an application under Article 226 was only the matter Unit was an application for restoration of an appeal for rehearing. In that matter the tribunal had not exercised the jurisdiction only because in view of the tribunal it had not any. That is an error. That is well within the powers of this Court to correct by a writ of certiorari. The contemplated remedy by way of an application for Reference under the Income-tax Act against the disposal of the appeal on merits in our view is not an adequate remedy, at least not sufficient and convenient remedy for the assessee to have the error of the tribunal on the point of its jurisdiction corrected. Mr. Pal in his fairness did not contend before us that the learned trial Judge Sabyasachi Mukharji, J. has committed any error in holding that the Appellate Tribunal had inherent jurisdiction, though not by any express provision, yet ancillary to the jurisdiction given by Section 254 of the Income-tax Act to restore and rehear an appeal disposed of on the merits in absence of any party who has been prevented by reasonable and sufficient causes from appearing before the tribunal at the date of hearing. We may only add that we fully agree with the view of the learned trial Judge and that tor the reasons of the provisions of Sub-section (1) of Section 254 of the Act itself the opportunity of being heard, spoken of in that provision of the Act is essentially part of the jurisdiction that the tribunal has been given by the Statute; when adequate and reasonable grounds for omission to appear at the hearing are made out to the satisfaction of the tribunal, it is only a question before the tribunal as to the adequacy of that opportunity of being heard which Sub-section (1) of Section 254 enjoins to be given before the tribunal is enabled to pass orders in the appeal.

6. Mr. Pal in support of his contention that the discretion to allow the application under Article 226 of the Constitution should not have been exercised because of an adequate alternative remedy cited before us a decision of the Supreme Court in the case of Commr. of Income-tax, West Bengal v. Ramendra Nath, reported in : [1971]82ITR888(SC) . That was a case however, where the adequate alternative remedy was an appeal given by the provision in the Statute. We do not find any reason that will enable us to extend that dicta of the Supreme Court to a case in which the alternative remedy thought to be adequate is not an appeal but, as Mr. Pal has urged before us, an application for Reference which is limited only to grounds of law and that also not in respect of the matter that was before this Court, that is the restoration application but something behind it, that is, the decision of the tribunal given on the merits in the appeal in absence of the party. We cannot omit to notice that in this decision cited by Mr. Pal the Supreme Court has said expressly that the High Court had jurisdiction to entertain the Writ petition though their Lordships said that it should not have exercised discretion in favour of the assessee in view of the alternative remedy they had. In the case before us we are unable to say that the assessee had an adequate alternative remedy in the matter that was brought before this Court by an application under Article 226 of the Constitution. Mr. Pal also cited before us another decision of the Supreme Court in the case of Commr. of Income-tax Bangalore v. K. Y. Pilliah and Sons, reported in : [1967]63ITR411(SC) for urging the proposition that the tribunal is the final fact finding authority. There is no question that it is so. The order that has been made by the learned trial Judge has only directed the tribunal to exercise that authority by correcting its view that it had no jurisdiction in the matter.

7. In the result we do not find anymerit in the appeal, and, therefore, dismissit with costs.

Amiya Kumar Mookerji, J.

8. I agree.


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