PUNJAB NATIONAL BANK Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) THE challenge in this writ petition is no the orders dt. 21st Feb., 1989 and 9th Aug., 1989 passed by the Tribunal dismissing the petitioner's applications under S. 254 of the Act.

(2.) THE said applications were dismissed without according any opportunity to the petitioner to be heard. A Full Bench of this Court in the case of Smart P. LTD.vs. ITAT (1990) 82 CTR (Del) 34 (FB) : (1990) 182 ITR 384 (Del) (FB) has held that an opportunity of being heard has to be accorded before an application under S. 254 is finally disposed of. It is contended by the learned counsel for the respondent that in view of the decision of the Supreme Court in the case of Carborundum Universal Ltd. vs. CBDT (1989) 80 CTR (SC) 85 : (1989) 180 ITR 171 (SC), it is no necessary to afford an opportunity of being heard. We are unable to agree. In the case of Carborundum Universal Ltd. ., the Court was dealing with the provisions of S. 220 (2A) which, as held by the Supreme Court, contained the discretionary power of the Board. The power under s. 254 is not a discretionary power and an application under S. 254 can be filed as of right which will be dealt with in accordance with law. We are bound by the decision of the Full bench of this Court in Smart's case and, therefore, an opportunity of hearing has to be granted before an application under S. 254 is disposed of.

(3.) IN view of the fact that the petitioner had alternative remedy open to it, we see no reason as to why we should interfere.