Ravi Construction Company vs Commissioner of Income Tax

Ahmadi, J.—The petitioner, a partnership firm, challenges the rejection of the petitioner''s returns filed under the Amnesty Scheme and

certain other incidental orders passed in that behalf. We propose to confine ourselves to the relief claimed in paragraph 28(B) of the petition,

namely, that the orders passed by the Income Tax Tribunal, Ahmedabad Bench, dated April 14, 1987, and October 16, 1987, be quashed and

the petitioner''s appeal be restored to file and in the meantime the prosecution launched against the petitioner be stayed. Learned counsel for the

parties have also addressed us on this limited question and, therefore, we are not required to set out the averments made in the petition in support

of the other reliefs sought in paragraph 28 of the petition. The facts relevant for the disposal of the limited question are as under :

The petitioner made an application under the Amnesty Scheme to the Commissioner of Income Tax and paid the tax as per the said scheme. The

petitioner thereafter addressed a letter dated March 27, 1987, to the Assistant Registrar, Income Tax Appellate Tribunal, Ahmedabad, stating that

the petitioner intended to file a return for the assessment year 1981-82, under the Amnesty Scheme and, therefore, seeks leave to withdraw the

appeal which was fixed for hearing on April 22, 1987. This letter was received by the Assistant Registrar on March 31, 1987. However, before

the appeal could be disposed of as withdrawn on the basis of the said letter, the petitioner wrote another letter dated April 9, 1987, stating that the

petitioner-firm had already filed the returns as per the Amnesty Scheme and the returns were accepted subject to withdrawal of the appeal. A

request was made in that letter that the appeal which was fixed on April 22, 1987, may be adjourned to enable the petitioner to approach the

Revenue authorities to get the returns processed and appropriate orders made in that behalf. It appears that notwithstanding the said letter written

by the petitioner to the Tribunal, the Tribunal passed the impugned order on April 14, 1987. On perusal of the said order, it becomes clear that the

Tribunal took note of the petitioner''s letter of March 27, 1987, and advanced the hearing of the appeal from April 22, 1987, to April 2, 1987, that

is, by about twenty days. It appears that the petitioner was not aware that the date of the hearing of the appeal was advanced to April 2, 1987.

The departmental representative who was then before the Tribunal stated that he had no objection if the assessee was permitted to withdraw the

appeal. The Tribunal stated that it had no objection if the assessee was permitted to withdraw the appeal. The Tribunal, accordingly, announced

the decision in the open court giving permission to the assessees to withdraw the appeal after considering its application. This observation gives the

impression that the appeal was orally permitted to be withdrawn on April 14, 1987. Be that as it may, the fact remains that the petitioner was not

informed that the date of hearing of the appeal was advanced to April 2, 1987, nor was the petitioner informed that the formal order permitting

withdrawal of the appeal would be passed on April 14, 1987. On the petitioner''s coming to know about the disposal of appeal, the petitioner

made an application some time in May, 1987, to the Tribunal to recall its order of dismissal of the appeal as withdrawn and to post the appeal for

final disposal in accordance with law. In the said application, the petitioner pointed out that initially the appeal was intended to be withdrawn on

April 22, 1987, on which date it was fixed for hearing but subsequently the assessee changed its mind and indicated by the letter dated April 9,

1987, that the withdrawal of the appeal be postponed. It is, therefore, clear that there was a change of mind on the question whether the appeal

should be withdrawn. The Tribunal, however, rejected the application of the petitioner and hence this petition.

It is clear from the above facts that even though the assessee informed the Tribunal by letter dated March 27, 1987, that it proposed to

withdraw the appeal which was fixed for hearing on April 22, 1987, it had changed its mind as is evident from the subsequent letter dated April 9,

1987. The Tribunal, however, had, without intimation to the assessee, advanced the date of hearing of the appeal to April 2, 1987, that is, by

about twenty days. But before that, it passed the formal order dismissing the appeal as withdrawn. However, the formal order dismissing the

appeal was passed on April 14, 1987, that is, after receipt of the letter of April 9, 1987. The Tribunal, therefore, ought to have applied its mind to

the letter of April 9, 1987, before passing the impugned order on April 14, 1987. That apart, even after the receipt of the subsequent letter of

May, 1987, from the assessee, the Tribunal surprisingly refused to recall its order of April 14, 1987, and to hear the appeal on merits on the

ground that though the Tribunal had power to do so, it would exercise it in rarest of rare cases. It is a matter of volition of a party whether or not it

desires to proceed with the appeal or withdraw the same. It would not be open to the Tribunal to advance the date of hearing without intimation to

the assessee. Admittedly, the assessee had communicated to the Tribunal its decision to proceed with the appeal on merits before the date of

hearing, that is, April 2, 1987. It is, therefore, clear that the Tribunal committed an error firstly in advancing the date without intimation to the

assessee, thereafter proceeding to pass a formal order on April 14, 1987, notwithstanding the receipt of the communication of April 9, 1987, and

still further refusing to recall that order on the assessee''s application of May 1987. We are, therefore, of the opinion that the order of the Tribunal

passed in the aforesaid circumstances cannot be allowed to stand.

In the result, therefore, we set aside the impugned orders of the Tribunal dated April 14, 1987 (annexure ""C""), and October 16, 1987

(annexure ""D""), to the petition and direct that the Tribunal will restore the appeal to its file and dispose of it in accordance with law after hearing the

parties to the appeal. The Tribunal will expedite the hearing of the appeal and dispose of it within two months from the receipt of the writ of this

court. In the meantime, so far as the prosecutions launched by the Department being Criminal Case Nos. 213 and 214 of 1987, pending before

the Additional Chief Metropolitan Magistrate, Ahmedabad, are concerned, the learned Magistrate will not pronounce the final order till the

disposal of the appeal by the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal will communicate the decision taken by it in the

appeal to the Additional Chief Metropolitan Magistrate, Ahmedabad, to enable him to proceed further in the matter. Rule is made absolute

accordingly with no order as to costs.

Before we part, we make it clear that since we have confined ourselves to the relief in paragraph 28(B) and (E) of the petition, it will be open to

the petitioner to pursue such remedy as is available to it in so far as the Amnesty Scheme is concerned.