JOSEPH MICHAEL Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) The issues raised in these Original Petitions are interrelated and the parties are same. So, I consider it advantageous to dispose of them by a common judgment.

(2.) Petitioner in O.P. 1503/1988 is a partnership firm, engaged in the business of purchase and sale of arrack and also Indian made foreign liquor. For the assessment year 1983-84, assessee filed return declaring a net loss of Rs. 14,27,810. The second respondent completed the assessment estimating the total income at Rs. 27,13,850. Accordingly, the firm was called upon to pay a sum of Rs. 9,76,199 as income tax. Aggrieved by the order of assessment, the firm filed an appeal before the Commissioner of Income Tax (Appeals). That appeal was rejected by order dated 16th December 1986. A second appeal was preferred to Income Tax Appellate Tribunal, Ernakulam against the order of the Commissioner of Income Tax (Appeals). A petition for stay of collection of tax was also moved before the Tribunal. Tribunal granted stay subject to the condition that the assessee should furnish sufficient security to the satisfaction of the department. The assessee complied with the conditions stipulated in the stay order. The Tribunal posted the appeal for hearing to 5th May 1987. It was the first posting of the appeal. The assessee was not aware of the posting since the matter was entrusted with their advocate. As the Advocate was away in Bangalore for arguing a case before the Settlement Commissioner, New Delhi in his camp sitting, his junior moved an application on 4th May 1987 for adjourning the case posted on 5th May 1987. Tribunal did not accept the request for adjournment and dismissed the appeal ex parte after hearing the departmental representative.

(3.) Petitioner received the order passed by the Tribunal on 30th May 198,7. Immediately, petitioner moved an application, M.P. 14/1987 in I.T.A. No. 29 (Coch)/1987 under proviso to R.24 of the Income Tax Appellate Tribunal Rules, praying for restoration of the appeal and for hearing the case on merits. Along with that petition, counsel who represented the petitioner also produced notice received by him from the Deputy Director of Investigation requiring him to appear before settlement Commissioner at 10.30 a.m. on 5 May 1987 at Bangalore. Tribunal dismissed that application by order dated 17th August 1987 holding that the Tribunal has no power of review and hence it cannot review the earlier judgment. Counsel representing the petitioner then moved M.P. 37/1987 in M.P. 14 (Coch)/1987 under R.24 of the Income Tax Rules. In that, learned counsel gave the entire circumstances under which he happened to be absent before the Tribunal when the appeal came up for hearing on 5th May 1987 and prayed for rehearing the appeal. That application was rejected by the Tribunal by its order dated 20th January 1988 on the ground that assessee has not brought out any mistake as such arising from the order of the Tribunal. Hence this Original Petition.