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TMI Blog1972 (8) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner affirmed the order of the Income-tax Officer. On the 12th January, 1967, the petitioner filed an appeal before the Tribunal challenging the said order of the Appellate Assistant Commissioner. On the 20th December, 1969, notice was issued from the Income-tax Appellate Tribunal to the assessee, the petitioner herein, intimating that the appeal had been fixed for hearing on the 7th January, 1970. On the 5th January, 1970, the petitioner sent a letter by registered post with acknowledgment due praying for adjournment of the appeal on the alleged ground of illness of the petitioner. On the 6th January, 1970, the aforesaid letter was received. It has to be mentioned that the said letter was not addressed to the Income-tax Appellate Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this application is whether the Tribunal had refused to exercise its jurisdiction which it had under the Act. The powers and jurisdiction of the Income-tax Appellate Tribunal in hearing the appeal are regulated by the provisions of section 33 of the Indian Income-tax Act, 1922, which is similar to the provisions of section 254 of the Income-tax Act, 1961. Sub-section (4) of section 33 of the Indian Income-tax Act, 1922, provides as follows : " (4) 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. " Rules have been framed for regulating the procedure of appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers granted to that authority by the statute. Reliance may be placed for this proposition on Halsbury's Laws of England, 3rd edition, volume 36, at page 436, article 657. In the case of Income-tax officer Cannanore v. M. K. Mohammed Kunhi the Supreme Court had occasion to consider the scope of incidental or ancillary powers under section 254 of the Income-tax Act, 1961, which is similarly worded as section 33(4) of the Indian Income-tax Act, 1922. There the Supreme Court observed that section 254 of the Income-tax Act, 1961, which conferred on the Appellate Tribunal powers of the widest amplitude in dealing with appeals before it, granted by implication the powers of doing all such acts or employing such means as were essentially necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by palpable mistake or was made in utter ignorance of a statutory provision and the like and for the application of that rule the class of the Tribunal was not a material matter but what was of substance and was material was the nature of the proceedings before it. If the proceedings were in the nature of judicial proceedings, then irrespective of the class of the Tribunal the rule applied ; the Tribunal had inherent jurisdiction. The Division Bench of this court had occasion to consider the scope of the power of the Tribunal under section 33 of the Indian Income-tax Act, 1922, in the case of Malchand Surana v. Commissioner of Income-tax. There it was observed that the Appellate Tribunal had power under section 33 of the Indian Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving both the parties in appeal an opportunity of being heard. It is necessary, therefore, that the Tribunal should have all the powers to ensure that the opportunity that the Tribunal grants to the parties concerned is fair, adequate and proper. If in a particular case it appears to the Tribunal that the opportunity could not have been properly availed of by a particular party as a result whereof the party did not have opportunity of placing its case before the Tribunal, it would be improper in my opinion to curtail the power of the Tribunal to decide the appeal again upon notice to the party or after giving the parties opportunity. Such a power is inherent in the jurisdiction vested upon the Tribunal. It is a power incidental to or ancill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l did not consider it proper that the assessee should have that opportunity but because the Tribunal thought that it had no jurisdiction to give such an opportunity. In my opinion, therefore, the fact that the petitioner might have raised its contention in a reference before the High Court would not affect the petitioner's right to ask for a consideration of the appeal after being given an opportunity of being heard. In the aforesaid view of the matter, I, therefore, set aside the order of the Tribunal dated 20th June, 1970, which is annexure " F " to the petition and I direct the Tribunal to consider the application or the petition dated the 7th of March, 1970, for restoration of the appeal and for hearing the petitioner before the dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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