TMI Blog1949 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... missing the appeal in default of appearance of the assessee, was received by the assessee. An application was then moved by the assessee on February 13, 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 section 66(1) of the Indian Income-tax Act, 1922, for drawing up a statement of the case and referring to the High Court questions of law mentioned therein. On October 27, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation and respondent No. 2's order thereon be included in the statement of the case, which should be returned to the High Court with those additions thereto and the documents referred to in this application to the High Court. This application and the reference under section 66(1) of the Indian Income-tax Act, 1922, were pending in this court when on March 22, 1955, the assessee died. The petitioners are, as stated, the legal representatives of the assessee and they continued pursuing the reference as also that application. The reference and the application came for hearing before a Division Bench of this court in the beginning of 1957 and on February 6, 1957, the learned Judges dismissed both. The case is reported as Balbhadar Mal Kuthiala v. Commissioner of Income-tax*. The first question was answered in the affirmative and it was held that the second, in view of the answer to the first question, did not arise. In regard to the application of the assessee under section 66(4) of the Indian Income- tax Act, 1922, and articles 226 and 227 of the Constitution the learned Judges observed that the assessee may, if so advised, present a fresh application for the purpose. This t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused the refusal of the first application are remedied in the second, and it makes no difference whether the motion is made in a private capacity or by a law officer on public grounds. Where, however, there was a mere formal defect, such as that the affidavits were wrongly entitled in the first place, there may be a second application upon affidavits amended in this respect. The previous application of the petitioners under articles 226 and 227 was not for the same relief as the present petition and it was not refused on the ground of defects in the case as disclosed in the affidavits supporting that application. The relief claimed in that application was a direction to respondent No. 2 to make certain additions to the reference under section 66(1) of the Indian Income-tax Act, 1922, by invoking the powers of the High Court under sub-section (4) of that section in addition, but in that application there was no prayer that the order, dated October 27, 1950, of respondent No. 2 on the first application of the assessee to them be quashed and direction be issued to respondent No. 2 to hear and dispose of that application on merits and according to law. This prayer is made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit shall not repeat his application on an amended affidavit, shewing no ground of application which might not have been presented before. Lord Denman, C.J., said that the general rule is that which was laid down in Regina v. Manchester and Leeds Railway Co.*, the exception is where the alteration would be simply in the form of a title or jurat, and reswearing the affidavit would clearly leave parties in the same situation in which they were before. The prosecutors here do not come within the exception. To make their application admissible we have to look at the particulars of the affidavits and its history, and an ingenious discussion is required. The general rule is simple, and easily applied. If we allow of alterations beyond its limit, we impose difficulties on ourselves, and tempt suitors into multiplied litigation. That was a case of a writ of mandamus. In Ex parte Thompson, it was held that where a rule for a mandamus to compel a corporation to make an order has been discharged, on the ground that no demand and refusal have taken place, the court will not grant a new rule for a mandamus to the same effect, though a demand and refusal have taken place since the discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry same thing and failed, except in case of alteration in the form of a title or jurat in the affidavit. The clearance of no other defect, on consideration of which the previous application was dismissed, can be permitted to enable a party to succeed in the second application. But the second application has to be between the same parties, for the same purpose, and made after defects found in the previous application have been cleared, excepting the formal defects as referred to above. In the present case the parties are the same but the present petition is not for the same purpose as was the earlier application of the petitioners under articles 226 and 227, and it has not been made simply to claim the same relief by clearing away defects found in the earlier application. What has happened is that in the earlier application the petitioners claimed a direction or order in the court to respondent No. 2 to refer additional question for its consideration according to section 66(4) of the Indian Income-tax Act, 1922, but, as pointed out, the learned Judges held that that could not be allowed. In that application it was never the prayer of the petitioners to have the order of October 27, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the dismissal of the petition. It is in the opinions of both the members of respondent No. 2 that no review of its order is competent by respondent No. 2. But what the petitioners sought before respondent No. 2 was not in the strict sense review of its order. They averred that there had been no service at all on the assessee and they prayed that they should be permitted to prove that. This they were not allowed to do. Sub-section (4) of section 33 of the Indian Income-tax Act, 1922, says that the Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. The hearing of the parties is a statutory imperative and if a party can prove it as a fact that it was never properly served of the notice given by the Appellate Tribunal and therefore was not able to present its case at the hearing of the appeal, surely it cannot be said that such a party has had an opportunity of being heard within the meaning and scope of the said sub-section. It is true, and it has been so held by the Division Bench in the case already referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and make an order on merits and according to law in the ends of justice. To my mind the position in this respect is quite clear apart from authority, but if an authority is needed there is the case of Bhagwan Radha Kishen v. Commissioner of Income-tax [1952] 22 I.T.R. 104, 108, in which the learned Judges observed: ...it is urged that there is no provision in the rules, as they now stand, for setting aside of an order of dismissal for default even in a case where the Tribunal might be later satisfied on unimpeachable evidence that notice was not in fact effected or that there was sufficient cause for non-appearance. It is true that there is no such rule but it must be held that there is inherent jurisdiction in the Tribunal to set aside an order of dismissal for default or an order passed on an appeal heard ex parte when it is satisfied that there was in fact no service of notice or that there was sufficient cause which prevented the appellant or the respondent from appearing on the date fixed. This argument on behalf of the respondents cannot, therefore, be accepted. In the view taken above respondent No. 2 had inherent jurisdiction to entertain and decide the first a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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