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TMI Blog1988 (11) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... th the intention of evading tax and were not genuine. Reference Applications have been rejected by the High Court. The assessees before us are included in these 34 firms. In this situation it can well be said that the present appeals are concluded by the decision of the Tribunal. 3. However, at the time of hearing before us the following submissions and application have been made on behalf of the assessees: "The assessee in the case of Samir Builders filed a Reference Application before the Hon'ble Tribunal which was rejected. An application was made to the Hon'ble High Court of Gujarat under s. 256(2) which was also rejected. A further petition for Special Leave to Appeal has been filed before the Hon'ble Supreme Court of India in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) has examined the facts of each particular assessee and has come to the conclusion on the question of granting registration to the assessee firms. The Hon'ble Tribunal in the case of Samir Builders has considered the cases of the entire groups and on the basis of charts, statements and submissions contained in the departmental paper book come to certain conclusions. The assessees submit that in the above appeals at the level of the ITO or the Commissioner(A) nothing else was considered except the facts of the assessees themselves. It is submitted that if Hon'ble Tribunal takes into account the facts of all other assessee-firms said to be connected and as elaborated in the case of Samir Builders, a new case would be made out by the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper. It is therefore, prayed (A) that the hearing of these appeals be adjourned sine die till the hearing of the Special Leave Petition by the Hon'ble Supreme Court in the case of Samir Builders. (B) in the alternative and without prejudice to the aforesaid submission, the above appeals be remanded to the lower authorities to decide the question of grant of registration to the assessee-firms in the light of the facts and circumstances of the case after giving opportunity to the assessees to produce further materials if they so desire." 4. The first observation which we would like to make is that this is not a full and direct opposition to the appeals. It is an application for adjournment or in the alternative for a remand to the lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and so if the Tribunal follows its decision in the case of Samir Builders it would be considering facts other than those considered by the ITO without giving theses assessees an opportunity to be heard. 7. Now, first of all this kind of an application for remand is not competent. A respondent to an appeal can made such an application only if he is fully opposing the appeal. He can do so only as an alternative to his main stand that he opposes the appeal and supports the decision of the lower authority. In the present case that primary stand by the respondent and so the basic requirement is absent. On previous dates of hearing the assessee's counsel had only asked for adjournments and this time for an adjournment or remand. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore clear that what the learned counsel is insisting upon is not the right to be heard but a right to do so before a particular forum. We are unable to accept this submission. Although a party may have a right to be heard, there is no right to be heard by a particular forum in preference to another forum which is equally, if not more, competent to decide the matter. Counsel stated that it was not enough for higher authorities to say that although opportunity was denied at a lower level it would be given before it. He stated that there was a plethora of authorities in favour of this proposition. He, however, cited none and we are aware of neither principle nor authority in support of such a proposition. We have, therefore, to reject the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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