TMI Blog1997 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... review its order (1992 - CIT v. Gokul Chand Agarwal 202 ITR P.14, Calcutta).' Intimation to that effect was sent to the assessee vide this Registry offices letter MA No. nil dated 13-6-1997 by registered post. 3. In the present misc. application the assessee has submitted that no opportunity to rebut and to produce evidence in support of the grounds on which earlier misc. applications were rejected was given to the assessee as a matter of natural justice. In view of this the assessee has pointed out the following facts and submitted as under: (i) That the recipient Shri Lekhraj Pandey was never an authorised representative of the assessee-company and never an employee of the assessee as has been confirmed through an affidavit and is evident as per Annexure-B; (ii) That Shri Lekhraj Pandey was an employee of M/s. Estate C.L. Burman owner of the complex 142 Rash Behari Avenue, Calcutta 700 029, as it is evident from the copy of certificate as per Annexure- C; (iii) That the assessee also furnished xerox copy of Attendance Register and Salary Register to prove that Shri Lekhraj was an employee of the said concern as a Gate Keeper and not as an officer or an educated person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. He also distinguished the provisions of section 254(l) from the provisions of section 254(2) and submitted that when a mistake is apparent from record and is brought to the notice of the Tribunal the Tribunal can rectify the same. According to him, review is altogether different from rectification and recalling and is when asked for reappraisal of the facts or revision of the order. He relied on the Kerala High Court decision in the case of CIT v. ITAT[1979]120 ITR 231/2 Taxman 337 atpage239andcontendedthatthepowerofsettingasideanexparteorder to offer the assessee an opportunity of being heard is not the same power as of 'review'. He also relied on the Kerala High Court decision in the case of Joseph Michael Bros. v. ITAT[1993) 199 ITR 466, at page 469 and submitted that in that case neither the assessee nor his representative was present and, therefore, the decision was rendered on merits; but when the assessee filed misc. application the Tribunal refixed the appeal for hearing and on being challenged, the contention of the revenue was negatived. In view of this, Shri Jain pleaded that the assessee's case in, of recalling the exparts order of the Tribunal and not of reviewing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances of the case prove the reasonable cause for non-appearance of the assessee at the time of hearing, of appeal. 6. Shri Jain, the Id. counsel for the assessee, addressed his arguments from another angle also and pleaded that even under section 254(2) of the Act the mistake is apparent from record as would be evident from paras 3 and 4 of the Tribunal's order dated 10-9-96 where the Tribunal did not give its own reasons and finding for confirming the impugned disallowance and, therefore this is a mistake of law since substantial justice has not been done to the assessee. The Id. counsel for the assessee relied on the following decisions: (1) CIT v. Nopany Education Trust (1986] 159 ITR 367/[1985] 21 Taxman 328 (Cal.) (2) CITv- Shakuntala Raieshwar [1986] 160 ITR 840/29 Taxman 215 (Delhi) (3) Brij Lal v. Asstt. CIT [ 1 996] 59 ITD I (Delhi) (TM) (4) ITO v. Murlidhar Sarda[1975]99 ITR 485(Cal.) (5) Ballabh Prasad Agarwallas case . The Id. counsel also argued the case on the basis of three limbs of law: equity, justice and fairplay and submitted that the order of the Tribunal dated 10-9-1996 should be recalled and the assessee should be heard to meet the ends of na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the order on MA No. 67/Cal/96, dated 15-01-1997 that .acknowledgment proves beyond doubt that the registered post is received by Dabur India Ltd. under the seal and signature of authorised person'. The contention of the assessee is also supported by the affidavit dated I- I I- 1 996 filed by the Managing Director of the assessee-company wherein, Shri G.C. Burman has solemnly affirmed that no notice of hearing has been received by their representative in Calcutta. This primary evidence was not taken cognizance of by the Tribunal although affidavit was filed along with the misc. application. No opportunity was also granted by the Tribunal to the assessee to clarify as to whether Shri Lekhraj Pandey was their employee or not. The assessee has filed a certificate from the Manager, Estate C.L. Burman, stating therein that Shri Lekhraj Pandey was working as a Badlie/Durban with that concern and he had resigned from service with effect from 18-10-1996. A copy of the certificate is placed at page I I of the paper-book. This certificate proves that Shri Lekhraj Pandey was not an employee of Dabur India Ltd. the assessee. Photocopies of attendance register and salary register, pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . application, as is evident from its subject that this was against the order passed in ITA No. 2950/Cal/92 for the assessment year 1986-87 and not against M.A. No.67/Cal/96. In other words, this misc. application was filed against the ex parte order passed by the Tribunal with a request to recall and restore the appeal as reasonable and sufficient cause was there. The prayer for recalling/restoration of appeal is apparent from paras 6 and 9 of the application. As the application was not for review but for recalling and restoration of appeal, this is a mistake apparent from record. Moreover, this order was passed without admitting the misc. application and without granting any opportunity of being heard to the assessee. In the case of Brij Lal Delhi Bench (TM) of the Tribunal, observed that 'what applies to the appeal before the Tribunal, equally applies to the miscellaneous application before the Tribunal. The Tribunal is expected to go into the Miscellaneous Application itself, apply its mind and give its decision thereon'. On the issue of ex parte order, it was held as under: 'This was not the correct approach, as, even in respect of an ex parte disposal. The Tribunal was obl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal and could be traced to sub-section (1) of section 254. According to the provisions of section 254(l) of the Act, giving a reasonable opportunity of being heard is essentially part of the jurisdiction of the Tribunal and we find, in the present case, that the ex parte order happened to be passed without giving a reasonable opportunity of being heard to the assessee. In our opinion, therefore, the Tribunal has power to make available reasonable opportunity of being heard to the assessee as we have subsequently realised that the ex parte order of the Tribunal was based factually without the assessee having had the benefit of being heard. This view of ours finds support from the decision of the Kerala High Court in the case of ITAT wherein it has been held as under: There is no express provision prohibiting the Tribunal from exercising the power to set aside such ex parte order. Therefore, it must be presumed that the power under section 254(l) extends to the power of setting aside an ex parte order in the interests of justice when the Tribunal is clear in its mind that the provision under the sub-section in its true spirit had not been complied with in passing the ex parte order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was not a prayer to review its earlier decision. It was to set aside its ex parte order for affording an opportunity of being heard. This power was inherent in the Tribunal. The Tribunal had refused to exercise that power for no justifiable reasons. The order of the Tribunal was not justified and was liable to be quashed.' In our view the case of the instant assessee stands on a better footing in the sense that the assessee, unlike Joseph Michael Bros @. case , has brought out some mistake as such arising from the ex parte order of the Tribunal dated 10-09-1996. 13. In addition to the provisions of section 254(l), read with rule 24 of the Tribunal Rules, the assessee's case is also covered by the provisions of section 254(2) as certain mistakes have been pointed out by the assessee which are mistakes apparent from records and they are mistakes of law as well as of facts. The assessee's contention that the finding of the Tribunal that the notice of hearing was received by the Dabur India Ltd. through an authorised person is a mistake apparent from record is correct. The assessee has also pointed out that since the Tribunal has not given its own reasoning and finding in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, 'review of an order means re-examination or to give a second view of the matter for the purpose of alteration or reversal of view already taken after changing the earlier opinion or view'. According to the jurisdictional High Court, section 254(2) expressly confers power upon the Tribunal to correct any mistake apparent from record and power to amend any order passed under sub-section (1) of section 254. In the instant case, it is not ,reversal of view already taken' or 'alteration' of the earlier 'opinion or view'. It is only the rectification of mistake apparent from record and, therefore, in our opinion, the provisions of section 254(2) are also applicable to the present case. For this proposition, we derive strength from the jurisdictional High Court in the case of BalLabh Prasad Agarwalla wherein it was held as under: 'It is a well settled proposition that an act of Court (which, in the context, means and includes a Tribunal of the nature of Income-tax Appellate Tribunal) should not prejudice a party. In such a case, it would not be just to derive the party to a reference under section 256. It must be left to the Tribunal to reopen the appeal if it finds that it has omi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repetition of the same. He placed reliance on the decision of the Tribunal, Allahabad Bench, in the case of Smt. Poonam Kumari wherein it was held that once a misc. application under section 254(2) against original order of the Tribunal is rejected, another application against the same order of the Tribunal and containing same matter cannot be entertained. We find that the ratio of this decision does not apply to the facts of the present case as the contents of the misc. application in MA No. 61 /Cal/97 were altogether different and they are, in short, given as under: (z) No opportunity to rebut or to produce evidence against the wrong presumption of the Tribunal that notice was received by the assessee through an -authorised person was afforded; (iI) To prove that Shr, Lekhraj Pandey was Gatekeeper photocopies of attendance register and salary register, as proof of employee of M/s. Estate C.L. Burman (Decd.) with signature were produced; (iii) About the second misc. application, the assessee has submitted that without giving any opportunity of being heard, it was rejected ex parte; (iv) It was clarified that second misc. application was not for reviewing the order passed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast para of M.A. No. 61 /Cal/97. 18. The revenue has also placed reliance on the Supreme Court decision in the case of Labh Chand wherein it has been held that it is a well established salutary rule of judicial practice and procedure that an order of a single judge or of a larger Bench of the same High Court dismissing the writ petition either on the ground of laches or non-exhaustion of alternate remedy, shall not be by-passed by a single judge or judges of a larger Bench except in exercise of review or appellate powers possessed by it'. In other words, once a writ petition is dismissed by the High Court, the second writ petition on the same matter cannot be entertained by the same High Court even if the first petition was dismissed for laches or non-exhaustion of alternate remedy. In our opinion, a writ petition under article 226 of the Indian Constitution cannot be compared with a misc. application under section 254(2); and more so when misc. application filed under section 254(2) is governed by the proviso to rule 24 of the I.T. (AT) Rules, 1963, whereby the Tribunal is empowered to restore the appeal after setting aside the ex parte order if the assessee can satisfy the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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