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TMI Blog1985 (3) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... equiring the Respondent to show cause as to why the Order-in-Appeal should not be revised. On transfer of the proceedings pursuant to the said notice, in terms of S. 131B (2), the matter came to the Tribunal to be heard as an Appeal. The Applicant herein was the Appellant; (b) although, the Appeal was to have been beard by the Calcutta Bench of this Tribunal, it was transferred to the North Regional Bench on the orders of the Hon ble President dated 24-3-1983, wherein he was pleased to direct that the Appeal should be fixed for an early bearing; (c) the Respondent applied for the production of three documents and when the Appeal came up for hearing on 21st June, 1983, the Bench was pleased to direct either the production thereof or, in the alternative, a statement of the Applicant s objections for their production on the next date of hearing fixed for 22nd August, 1983. The Bench observed that failure to produce the documents, or, in the alternative, file objections to the production thereof may entail an ex-parte decision. Further directions were given by the Bench to the effect that no other case is to be fixed for 22-8-1983 and the record of the Appellant should be availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of more than 50 days, we find that the documents have not yet been produced. Nor has the Appellant or his Departmental Representative applied for extension of time for production of the documents at any time after the expiry of four weeks from the date of the receipt of the Order dated 26-9-1983. The Appellant as well as his Departmental Representative cannot plead ignorance of the orders that are made by the Tribunal from time to time. If any delay beyond the time granted for production of documents was anticipated or the direction of the Tribunal could not be complied within the time granted, it behoves the Appellant or his Representative to apply for extension of time rather than wait for such steps as the Respondent may take in the matter. In the circumstances of the case, we are clear in our minds that the Appellant had, to his knowledge, transgressed the directions of the Tribunal. Having done so, there is hardly any merit in saying that no copy of the instant Application was received and this despite notice that the Appeal itself was to be heard on 15-2-1984. Indeed, there was nothing to prevent the Departmental Representative from making available copies of such doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid facts and circumstances, there was neither any disregard or even intent to disregard the order of the Tribunal, since the documents available had been ultimately supplied to the Respondent. The Appeal may be restored and heard condoning the lapses and default of the Appellant or the Senior Departmental Representative, if any; (g) some important questions of law are involved in the Appeal which, unless decided by the Tribunal, would have wider repercussions and impact; (h) non-service of the Respondent s Application dated 14-1-1983 (praying for dismissal of the Appeal for Appellant s failure to comply with the Order of the Tribunal dated 26-9-1983 No. 509/83) and the eventual dismissal of the Appeal itself, accordingly, amounted to denial of the principles of natural justice; (i) there is no provision for dismissal of an Appeal for default apart from Rule 20 of the Customs, Excise Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 (hereinafter, the Rules) and, accordingly, the dismissal of the Appeal for non-compliance with the Tribunal s Order was incorrect. 4. Before us, Shri Lakshmikumaran appearing for the Appellant, while conceding that Rule 20 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant, having, admittedly, received the Order of this Tribunal [Order No. 509/83, dated 26-9-1983] on 24-10-1983, defaulted in the production of the documents for more than two-and-half months thereafter and now thinks it fit to blame his subordinates and the Departmental Representative for his own lapses and, accordingly, hardly deserves the relief of restoration of the Appeal; (e) it is not correct to say that the Tribunal is without any power to dismiss an Appeal for failure to comply with its directions for discovery and production of document. Reference is invited to S. 129C(7) of the Act under which the Tribunal has all the powers of a Civil Court in regard to discovery and inspection. 6. On a perusal of the papers in the record, and the submissions made and otherwise, it would appear to us that - (a) indisputably, the Tribunal is vested with all the powers of a civil Court in respect of - (i) discovery and inspection, and (ii) compelling the production of books of account and other documents [S. 129C(7)]; (b) the power of a civil Court in the aforesaid matters extends to dismissal of the suit or the striking out of the defence, as the case may-be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still to be disposed of on merits and not dismissed for such failure. The Applicant relies upon the decision of the Hon ble Supreme Court in AIR 1969 SC 1068 [The Commissioner of Income-tax v. S. Chenniappa Mudaliar]; (ii) this was not an issue raised in the hearing before us earlier when the Appeal itself was dismissed. Our attention was drawn to AIR 1969 SC 1063 only now when, as will appear below, we are powerless to restore the Appeal dismissed for failure to comply with the directions of the Tribunal, except by resort to the maxim Actus curiae neminem gravabit , if at all applicable; (iii) further, while it is, undoubtedly true, that the Hon ble Supreme Court in the aforesaid decision, construing S. 33(4) of the Income-tax Act, 1922, observed (in para 6 of the report of the judgment) that the scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an Appeal by making such orders as it thinks fit on the merits , it cannot be overlooked that these observations were made in the context of a Rule (Rule No. 24) framed by the Income Tax Appellate Tribunal itself for dismissal of an Appeal for a default in appearance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion precedent for the hearing of the Appeal before the Tribunal altogether nugatory. (vii) in the result, we are unable to agree with the contention advanced for the Applicant that, the Tribunal could not have dismissed the Appeal for the Appellant s failure to comply with the directions of the Tribunal in terms of S. 129C(7) of the Act; (viii) while on the subject, it may be mentioned that it is not also without significance that under S. 255(6) of the Income Tax Act, 1961, the powers of the Appellate Tribunal in matters of discovery, inspection and production of documents are restricted to those of an Income Tax Officer under S. 131 and not co-equal with that of a civil Court as in terms of S. 37 of the Act of 1922 or S. 129C(7) of the Act. In terms of S. 131, the Income Tax Officer can only levy a fine not exceeding Rupees Five Hundred for failure to comply with the directions for production of documents, for in the nature of the proceedings, there cannot be a dismissal of assessment proceedings. The Tribunal has not been vested with powers of larger amplitude to dismiss the Appeal itself for such non-compliance; (g) when the Appeal was dismissed in terms of the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to see that, if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied, but for the mistake ; (iii) again, in 1970 (1) SCC 573 = (1971) 1 SCJ 180 = 1970 ALJ 1213 - Jagannath Singh v. Ram Naresh Singh] the Hon ble Supreme Court had occasion to observe, following the aforesaid maxim, that an omission to mention a case correctly in the cause list was a mistake of the Court itself and some indulgence was, therefore, to be shown, since an act of Court should harm no person; (iv) the Respondent cannot claim a vested right in such a mistake (1978 Cr LJ 1184-Gauhati); (v) nor can the Rules of the Tribunal come in the way of such restitution. The dismissal of the Appeal was not conclusive or immutable where restitution becomes inevitably necessary and the order of the dismissal, inconsequence, has to be recalled and set aside. It is not as if the Tribunal becomes denuded of any such power where such restitution is imperative ; (n) as discussed by us. in the case in 1984 (18) E.L.T. 310 [Entremonde Poly waters v. Collector of Central Excise], restitution in integrum on account of an erroneous act of the Tribunal by which ..... 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