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TMI Blog1973 (6) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... lication under article 226. In the circumstances, against an assessment order, the present respondent, Murlidhar Sarda, had preferred an appeal which was pending before the Income-tax Appellate Tribunal, " D " Bench, Calcutta. On the date fixed for hearing of that appeal the respondent, revenue, was represented, but no one appeared for the appellant. The Appellate Tribunal made an order in which it was mentioned that the notice fixing the date of hearing of the appeal was duly served on the 24th of December, 1969, and on the date of hearing, namely, 7th January, 1970, there was no one present for the assessee when the appeal was called on for hearing. The Tribunal accordingly proceeded to dispose of the appeal or merits after hearing the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order apparent from the record." In that state of the records the assessee made an application to this court under article 226 of the Constitution and obtained a rule. In disposing of the rule our learned brother, Sabyasachi Mukherji J., heard both sides and, on consideration of the authorities placed before his Lordship, he held that the "Tribunal has the power and indeed the obligation to dispose of the appeal and pass such order thereon after giving both the parties in appeal an opportunity of being heard. It is necessary, therefore, that the Tribunal should have all powers to ensure that the opportunity that the Tribunal grants to the parties concerned is fair, adequate and proper." His Lordship also held that it is a power inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution were granted by directing the Tribunal to consider the application or the petition dated the 7th March, 1970, for restoration of the appeal and for hearing of the petitioner before the disposal of the appeal. It has been made clear in the order that the Tribunal would be entitled to consider whether the petitioner is entitled to such a hearing or whether the petitioner has made out such a case before the Tribunal that there were proper and sufficient cause for recalling its previous order. It was also expressly said in that order that, after consideration of the said facts, the Tribunal would pass such an order in accordance with law as the Tribunal would consider fit and proper. The rule was made absolute to that extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for restoration of an appeal for rehearing. In that matter the Tribunal had not exercised the jurisdiction only because in the view of the Tribunal it had not any. That is an error that is well within the powers of this court to correct by a writ of certiorari. The contemplated remedy by way of an application for reference under the Income-tax Act against the disposal of the appeal on merits in our view is not an adequate remedy, at least not sufficient and convenient remedy for the assessee to have the error of the Tribunal on the point of its jurisdiction corrected. Mr. Pal, in his fairness, did not contend before us that the learned trial judge, Sabyasachi Mukharji J., has committed any error in holding that the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtend that dicta of the Supreme Court to a case in which the alternative remedy thought to be adequate is not an appeal but, as Mr. Pal has urged before us, an application for reference which is limited only to the grounds of law and that also not in respect of the matter that was before this court, that is the restoration application but something behind it, that is, the decision of the Tribunal given on the merits in the appeal in the absence of the party. We cannot omit to notice that in this decision cited by Mr. Pal the Supreme Court has said expressly that the High Court had jurisdiction to entertain the writ petition though their Lordships said that it should not have exercised discretion in favour of the assessee in view of the alte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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