Allahabad H.C : This is an assessee’s writ petition filed under Art. 226 of the Constitution for a writ of certiorari quashing the judgment and order dt. 7th Oct., 1987, passed by the ITAT, ‘A’ Bench, Allahabad, in Misc. Application No. 61 (Allahabad) of 1987 (Kripa Shanker vs. WTO).

High Court Of Allahabad

Kripa Shanker vs. CIT/Wealth Tax & Anr.

Sections 253, 254, WT 24

Asst. Year1978-79, 1979-80, 1980-81, 1981-82, 1982-83

K.C. Agrawal, Actg. C.J. & R.K. Gulati, J.

Civil Misc. Writ Petition No. 143 of 1988

25th July, 1989

Counsel Appeared

Shashi Kant Gupta, for the Petitioner : Standing Counsel, for the Respondent

K.C. AGRAWAL, ACTG, C.J.:

This is an assessee’s writ petition filed under Art. 226 of the Constitution for a writ of certiorari quashing the judgment and order dt. 7th Oct., 1987, passed by the ITAT, ‘A’ Bench, Allahabad, in Misc. Application No. 61 (Allahabad) of 1987 (Kripa Shanker vs. WTO).

For deciding the controversy involved, the facts of the case are not required to be elaborately stated. Ram Narain and Badri Prasad formed two different HUFs. Badri Prasad died leaving behind Kripa Shanker as his heir and legal representative. As against the orders passed under the WT assessment for the asst. yrs. 1978-79, 1979-80, 1980-81, 1981-82 and 1982-83, the petitioner filed appeals before the CIT/CWT(A), Agra which were decided on 20th Oct., 1986. As against the orders passed in the aforesaid appeals, the WTO preferred appeals to the Tribunal in respect of the asst. yrs. 1978-79 to 1982-83. These appeals were numbered as WTA Nos. 26 to 30 (Allahabad) of 1987. The Tribunal decided these appeals ex parte against the petitioner on 9th March, 1987. The operative portion of these appeals are contained in paragraphs 5 and 6 of the judgment. The petitioner, thereafter, moved an application on 29th April, 1987, for setting aside the judgments of the appeal on the ground that since the time for filing of the cross-objection had not expired, which is thirty days with effect from the date of the receipt of the notice by the assessee under s. 253(4) of the Act, the Tribunal could not decide the same. The assessee asserted in the application for setting aside the judgment of Tribunal that his counsel had also given advice to that effect. The application was rejected by the Tribunal by the order dt. 7th Oct., 1987. Against this order, the present writ petition has been filed.

We have heard counsel for the parties and are of opinion that, on the facts and in the circumstances of the present case, the Tribunal was wrong in deciding the appeal on 9th March, 1987.

The appeal was fixed for hearing on 4th and 5th March, 1987, for the adjournment of which the assessee had sent a telegram to the Tribunal. A prayer for adjournment of the appeal had also been made by Sri S.K. Gupta, the Advocate on behalf of Sri J.P. Bajpai, who was appearing for the assessee in the appeal. Sri J.P. Bajpai stated that he was under the impression that the period of filing of cross-objection within thirty days had not expired and, therefore, the appeal, in all probabilities, was likely to be adjourned. The Tribunal, as stated above, rejected the application on the finding that the assessee could since file cross-objection even after allowing of the appeal of the Department, therefore, the ground given in the application did not give sufficient cause for setting aside the order. In our opinion, the Tribunal misdirected itself completely by not appreciating the ground given in justification of the application for setting aside the judgment given by it in the appeal ex parte against the assessee. As a result of the advice of Sri J.P. Bajpai, the assessee did not appear on the date fixed in the appeal. It may be correct that the cross-objection could be filed by the assessee even after the appeal had been disposed of. But that could not be a ground to hold that the same did not constitute sufficient cause for setting aside the appellate judgment by restoring the appeal to its original number. In Sundram vs. Annangar (1890) ILR 13 Mad 492, the Division Bench laid down: “An appeal cannot definitely be posted until the Court has ascertained that notice of the appeal has been served on the respondent and a date must then be fixed not less than one month from the date of service.”

The assessee was misled by advice of his advocate that the hearing of the appeal was to be adjourned as thirty days had not expired since the service of the notice of the appeal on the assessee. This could itself be a ground for setting aside the judgment and order passed on the appeal behind the back of the appellant and in not doing so the Tribunal committed a mistake apparent on the face of the record.

5. Consequently, we allow the writ petition, quash the order of the Tribunal rejecting the application and direct the Tribunal to hear the assessee in the appeal after restoring the same to its original number.

[Citation :181 ITR 183]

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