RAVI CONSTRUCTION COMPANY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) 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 :

(2.) 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 But before that, it passed the formal order dismissing the appeal as withdrawn.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.

(3.) 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.