TMI Blog1996 (6) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... xed for hearing on 5-3-1993 and the notice was served on the assessee on 30-1-1993. It remained non-complied. The case of the assessee for non-compliance of the notice was that in the notice dated 27-1-1993 which was served on the assessee on 30-1-1993, the date of hearing was mentioned as 5-3-1993. The counsel of the assessee sought adjournment on 4-3-1993 as the assessee was out of station. But to the assessee's surprise, it was informed that the matter has been decided ex parte. In the above circumstances, the assessee's counsel made an application on 24-3-1993 requesting to recall the order and fix the same for hearing afresh. The assessee relied upon the following decisions :--- 1. Khushalchand B. Daga v. T.K. Surendran, Fourth ITO [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing was 5-3-1993 whereas ex parte order is passed considering the date of hearing as 5-2-1993. Considering the facts the ld. DCIT(A) has recalled the order and restored the appeal for fresh hearing. The copy of the order passed under section 154 by the learned DCIT(A), Nagpur is enclosed. 3. In view of the above, the assessee crave leave for permission to withdraw the appeal. " Vide its order dated 7-11-1994, the Tribunal granted the permission to the assessee to withdraw the appeal. The present appeal by the department is against the order passed by the learned DCIT(A) dated 9-8-1994 recalling his order dated 5-2-1993 and restoring the matter for fresh hearing. 4. The learned Departmental Representative took us through section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s :--- (a) Had the department made known to the assessee that the department has preferred an appeal against the order under section 154, the assessee would not have approached the Tribunal for withdrawing the appeal. (b) The revenue by its own action, allowed the assessee to withdraw her appeal. (c) Now the revenue is precluded in approaching the Tribunal against that order. (d) The revenue is taking the advantage of its own mistake which is against the very fundamental rule of natural justice. (e) The revenue is taking the advantage of its own mistake which no authority can do. The learned counsel for the assessee relied upon the following decisions :--- 1. Khushalchand B. Daga's case 2. S.B. Singar Singh Sons' case 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke apparent from the face of the record. Under section 154, the income-tax authorities have empowered to rectify any mistake apparent from the record by amending any order passed by it and/or amending any intimation sent by it, and no more. Section 154 does not specifically give a power to recall an order and to decide the issue afresh. 7. Question before us is whether, under the given circumstances like this, the assessee is without remedy and suffer injustice done for no fault of her but for the act or mistake of other party. We are afraid to take advantage of its own mistake on the ground that the statute does not empower the authority to recall its order and, therefore, the assessee should suffer the injustice, is against the very fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only 'fair play in action'. Nor do we wait for directions from Parliament. The common law has abundant riches : there may we find that Byles, J. called ' the justice of the common law '.' In the case of A.K. Kraipak v. Union of India AIR 1970 SC 150, their Lordships of the Supreme Court observed : " The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution and the nature of duties of the Tribunal or the body of persons appointed for that purpose. Thus, even in the absence of any express rule of natural justice embodied in the statute, the Courts have to supply such rules as the circumstances of the case may demand in order to do justice. 10. Byles, J. emphasising the duty to hear in very emphatic terms in Cooper v. Wandsworth Board of Works [1863] 143 E.R. 414, quoted the observations of Justice Fortescue in Dr. Bentley's case. A fair hearing of the party consists of the following three elements :---- (a) Notice of the proposed action. (b) Notice when the Judge proposes to proceed with the matter. (c) A fair opportunity to show cause against the proposed action. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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