TMI Blog1979 (3) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... t an application for rectification, Ex. P-12, preferred to the Tribunal under s. 36 of the Act, was not maintainable under the said provision, and that, therefore, Ex. P-13 order rejecting the said application was quite proper and correct, with the result that there was no ground to interfere with the original order of the Tribunal, Ex. P-11, dismissing the appeals themselves on the merits. The appellant owns nearly 74.29 acres of garden land and 13'6 acres of single crop wet land. His wife was the owner of about 51'71 acres of garden land. In assessing the appellant to agricultural income-tax for the years 1966-67, 1967-78 and 1968-69 by Exs. P-1 to P-3 orders, the Agrl. ITO clubbed the income from the estate of the wife along with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been brought to his notice by an assessee : ....... " Art. 24. Restoration.--(1) Where a principal application is disposed of ex parte any absented party, if aggrieved, may apply to the Tribunal within 30 days from the date of communication of the order, for restoring such proceeding to the file and where it is shown to the satisfaction of the Tribunal that he was prevented by sufficient cause from appearing when the proceeding was called on for hearing the Tribunal shall restore the same and proceed with it. " In Ex. P-12 application filed by the appellant it was stated that when the appeals before the Tribunal were heard on November 13, 1972, his advocate requested that the Commission report may be sent back to the Commission for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal and give an opportunity to argue the appeals on merits. Dealing with this contention, the Tribunal stated after quoting S. 36 " This section is empowering us only to rectify a mistake and the prayer before us is that this Tribunal has not considered certain contentions on merits and, therefore, the order of this Tribunal must be reviewed and the matter may be re-heard. So, as pointed out by the learned State representative, these applications will not come within the purview of section 36 of the Agrl. Income-tax Act and hence there is no scope for any rectification of the earlier order. " Before us in the writ petition the above material has been supplemented by Ex. P-14 affidavit of the counsel who appeared before the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he section on which rectification of the orders is permissible is a mistake apparent on the record of the appeal, revision, assessment or refund. Our attention was drawn to the decision of the Supreme Court in ITO v. Asok Textiles Ltd. [1961] 41 ITR 732 which, among other cases, has expounded the distinction between the scope and ambit of the provisions of 0. 47, r. 1 of the CPC dealing with review and s. 35 of the Indian I.T. Act, 1922, providing for rectification of an order of assessment, on almost similar terms as the section with which we are concerned in the instant case. Our attention was also called to the decision of the Allahabad High Court in ITO v. Income-tax Appellate Tribunal [1965] 58 ITR 634, the facts of which come fairly n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there would be an error apparent from the record which could be rectified under section 35 of the Act." It will be noticed that the court was stressing a situation where the mistake or error was one which was the creation or contribution of the Tribunal itself, and not one resulting from an impression formed by the counsel who appeared in the case, which the Tribunal did nothing to create, and to which it did not contribute anything. Could it be said, in the circumstances that there was an error apparent from the records of the appeal? We have no material on record to hold that the Tribunal either created, or contributed to the creation of, the impression in the mind of the counsel that the counsel was likely to be afforded a further inn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the impression in which the counsel was left, and this is confirmed by the parties themselves in Ex. P-12 application, we are of the opinion that, in the circumstances, it cannot be said that the party or the counsel had been afforded a fair opportunity of being fully and fairly heard while dealing with, and disposing of, the appeal by Ex. P- 11 order. In other words, we are of the opinion that there has been a violation of the principles of natural justice in not having afforded a full and fair opportunity to the counsel in arguing the appeal before the Tribunal on its merits. On this ground, we think the appellant is entitled to a quashing of Ex. P- II order and to a remittal of the appeal to the Tribunal for fresh consideration and dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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