TMI Blog2003 (2) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ond appellate authority by the order dated February 5, 2002 dismissed appeal No. 99 of 1990 and allowed the Appeal No. 127 of 1990 by enhancing the tax liability of Rs. 1,03,800. The assessee filed an application on March 6, 2002 under section 22 of the U.P. Trade Tax Act, 1948 for rectification of the ex parte order praying for opportunity of hearing. The application was supported by affidavit of counsel for the applicant. It was stated in the affidavit that although the counsel for the applicant noted the date February 2, 2002 but he fell ill on January 30, 2002 and was unable to move upto February 6, 2002 due to which neither he could inform the assessee nor could appear on the date of hearing. It was stated in the affidavit that ex parte order be rectified under section 22 and opportunity of hearing be given. The Trade Tax Tribunal noted the contents of the application but rejected the application on the ground that no clear mistake in the order dated February 5, 2002 has been pointed out which required rectification, hence the application is rejected. This revision has been filed challenging the aforesaid order dated January 20, 2003. 4.. The learned counsel for revisionist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch rectification has the effect of enhancing the assessment, the authority concerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act and the Rules framed thereunder shall apply as if such notice had been served in the first instance." 9.. The above section contains an enabling power in the assessing, appellate or revising authority or the Tribunal for rectification of any mistake in its order apparent on the record. The sub-section (1) of section 22 uses words "mistake". Further the mistake contemplated in section is a mistake which is apparent on the record. A mistake apparent on the record must be an obvious a patent mistake and not something which can be established by a long process of reasoning on points on which there may be conflicting opinion and decision on debatable point of law is not a mistake apparent on the record. A mistake which can be proved by only referring to the records and on the facts already on the record, can be said to be apparent mistake on the record. 10.. Section 10 of the Act provides for filing an appeal to the Tribunal. Sub-section (4) and sub-section (5) which are relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-rule (1) to be served well in time on the parties to the appeal at the address mentioned in the memorandum of appeal, or on their lawyer or authorised agent. (3) The notice of cases fixed for hearing in a week shall be affixed on the notice board of the appellate authority or the Tribunal, as the case may be, on the last working day of the preceding week. (4) On the date of hearing, if all the relevant records of appeal have been received, the parties present shall be given reasonable opportunity of being heard and the appellate authority or the Tribunal, as the case may be, may, after examining all the relevant records, decide the appeal: Provided that if, despite the proper service of the notice either party is not present, the appeal may be heard and decided ex parte. (5) The judgment in appeal shall be in writing and shall state- (a) the points for determination; (b the decision thereon; and (c) the reasons for such decision. (6) Cross-appeals arising out of the same case, admitted by the Tribunal, shall, as for as possible, be heard together. (7) Copy of every order under section 9 or section 10 shall be delivered to, or served on the parties con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise of power under section 22 of the Act. 16.. Now coming to the facts of the present case, it is clear that due notice was given to the Counsel for revisionist of date fixed by Tribunal and on the date fixed counsel could not appear. It is not even denied on behalf of the revisionist that counsel had not noted the date fixed. The application filed under section 22 by the revisionist, copy of which has been annexed as annexure 4 to the affidavit, filed in support of revision does not make out any case of mistake apparent on record. 17.. From the facts brought in the present case, no grounds have been made out for rectification under section 22 and no exception can be taken to the order passed by Tribunal refusing to rectify the order under section 22. 18.. Now the next question which arises is as to whether Tribunal has any jurisdiction to recall an order which has been passed ex parte. U.P. Trade Tax Act, 1948 and U.P. Trade Tax Rules, 1948 do not contain any provision specifically enabling the Tribunal to recall an ex parte order. Section 30 of the Act provide for setting aside of an ex parte assessment on satisfying that the applicant did not receive notice or was prevente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rehearing of the reference. This Court held that on the reference being returned, it had become functus officio to entertain the application. This view was reversed by the Supreme court. It was held that if a party or its counsel are prevented from appearing at the time of hearing of the reference, and the party shows subsequent to the order declining to answer the reference, that there was sufficient reason for non-appearance, the High Court had inherent power to recall its earlier order and dispose of the reference on merits. It was further held that as there was no specified provisions in the Indian Income-tax Act, 1922, which either expressly or by necessary implications prohibited the High Court from recalling on order of dismissal for default, the High Court had jurisdiction to set aside the earlier order. We have purposely referred to this case, to thwart an argument raised by the Standing Counsel that the inherent power to set aside an ex parte order reaches only to a case where the order has been passed without due notice to an assessee or the opposite party. It is clear that the reach of inherent power exercised by a Tribunal extends beyond this region too, and embra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly provided in the Act as well as ancillary and incidental to the exercise of power. Section 19-A of U.P. General Clauses Act, 1904 expressly provides for ancillary powers to any person, officer or functionary under any U.P. Act. Section 19-A of the U.P. General Clauses Act is quoted as below: "[19-A Ancillary powers.-Where, by any Uttar Pradesh Act, a power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers shall be deemed also to be given as are necessary to enable that person, officer or functionary to do or enforce the doing of the act or thing]." 24.. Sale Tax Tribunal is empowered to decide an appeal after giving parties a reasonable opportunity to be heard. When a case has been decided in absence without any opportunity to a party, power has to be conceded to Tribunal to set aside the ex parte order and again decide the matter carrying out the mandate as given in section 10(5). Conceding such a jurisdiction by Tribunal will facilitate decision of a case in accordance with law. When an authority has power or decide an appeal, all such ancillary and incidental power has to be read into the jurisdiction which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not only the power but also the duty to set aside the ex parte award and to direct the matter to heard afresh. The rule in question [Rule 22 of the Industrial Disputes (Central) Rules, 1957] provided that without sufficient cause being shown, if any party to proceedings before the industrial Tribunal failed to attend or be represented, the Industrial Tribunal could proceed as if the party had duly attended or had been represented. If, therefore, there was no sufficient cause for the absence of a party the Industrial Tribunal had the jurisdiction to proceed ex parte. But if sufficient cause was shown which prevented a party from appearing, the Industrial Tribunal had the power to set aside the ex parte award. The power to proceed ex parte carried with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. 5.. Rule 20 of the CEGAT (Procedure) Rules deals with cases where the appellant has defaulted. Rule 21 empowers CEGAT to hear appeals ex parte. The fact that rule 21 does not expressly state that an order on an appeal heard and disposed of ex parte can be set aside on sufficient cause for the absence of the respondent b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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