Commissioner of Wealth Tax vs Smt. Illa Dalmia

We are of the opinion that these applications have to be dismissed.

The Commissioner of Wealth-tax is seeking reference of a question of law said to arise out of the order of the Tribunal dated October 30, 1982. According to the applicant, the order dated October 30, 1982, is an order passed by the Tribunal without jurisdiction. In this view of the matter, it does not appear that these applications for reference are at all maintainable. All these applications raise an identical question, and to appreciate the issue raised, the relevant facts pertaining to one of the applications may be stated.

The assessed, Smt. Illa Dalmia, filed appeals to the Tribunal under the Wealth-tax Act and this was disposed of by an order passed by the Tribunal on November 12, 1981. This was an order passed by the Tribunal u/s 24(5) of the Wealth-tax Act, 1957.

Subsequently, the appellant/assessed brought to the notice of the Tribunal by a miscellaneous application that no valid service had been effected on her of the notice of the hearing of the appeal. It was, Therefore, prayed that the order dated November 12, 1981, should be recalled and the appeal heard afresh. By the order dated October 30, 1982, this miscellaneous application was allowed by the Tribunal. The original order dated November 12, 1981, was recalled and the appeal was relished for hearing. Counsel for the assessed states that against the order of the Tribunal disposing of the appeal subsequently, a reference has already been made by the Tribunal u/s 27 of the Wealth-Act and is pending in this court.

By the present wealth-tax cases, the Commissioner of Wealth-tax seeks to challenge the jurisdiction of the Tribunal to pass the order dated October 30, 1982. The submission on his behalf is that the Tribunal had no jurisdiction to restore the appeal which had been disposed of ex parte and on merits by the Tribunal on November 12, 1981.

In our view, we need not at all go into the question raised by the applicant as to whether the Tribunal had the inherent power to restore an appeal which had been disposed of without Realizing that the notice of hearing had not been properly served. In our view, these applications have to be dismissed for two reasons. In the first place, it appears clear that the order of the Tribunal is maintainable u/s 35 of the Wealth-tax Act. The original order had been passed under the impression that the appellant had been served with the notice of the hearing of appeal but was not present. When the assessed brought to the notice of the Tribunal that valid service had not been effected on her and the Tribunal came to realise that the appellant had not been served, it was entitled to rectify u/s 35(1)(d) of the Wealth-tax Act and pass appropriate orders for amending the position. In this view of the matter, the order passed by the Tribunal on October 30, 1982, is so obviously correct that no arguable question of law can be said to arise there from and these applications will have to be dismissed.

If, on the other hand, one accepts the point of view of the applicant that the order of the Tribunal dated October 30, 1982, is not traceable to section 35 of the Act and it should be treated as a miscellaneous order passed on a miscellaneous application, then again it is well established that a question of law arising out of such an order cannot be referred to this court. This has been settled by the Supreme Court as early as 1953 in Commissioner of Income Tax, Madras Vs. Mtt. Ar. S. Ar. Arunachalam Chettiar, .

For these reasons, we are of the opinion that these applications have to be dismissed. We direct accordingly. No costs.