(1) THIS appeal is by the Revenue and is directed against an order passed in this Court by our learned brother Sabyasachi Mukharji, J. disposing of an application under Article 226 of the Constitution by directing the Appellate Income-tax Tribunal to consider the application for restoration of the appeal that had been disposed of by the Tribunal in the absence of the appellant or his representative. The matter was brought to this Court by way of an application under Article 226. In the circumstances, against an assessment order the present respondent Murlidhar Sarda had preferred an appeal which was pending before the Income-tax Appellate Tribunal, 'd' Bench, Calcutta. On the date fixed for hearing of that appeal the respondent Revenue was represented but no one appeared for the appellant. The Appellate Tribunal made an order in which it was mentioned that the notice fixing the date of hearing of the appeal was duly served on the 24th of December. 1969 and on the date of hearing, namely, 7th January, 1970, there was no one present for the assessee when the appeal was called on for hearing. The Tribunal accordingly proceeded to dispose of the appeal on merits after hearing the department's representative and on such hearing the Tribunal dismissed the appeal.

( 2 ) THEREUPON on 7th March, 1970, the assessee made an application before the Appellate Tribunal praying that the appeal be restored and a fresh hearing be given to the appellant on the ground that the appellant had been prevented by reasonable and sufficient cause from appearing at the hearing of the appeal on the 7th of January, 1970, because the appellant had fallen ill and on 5th January, 1970, a petition praying for adjournment of hearing for four weeks on that ground of illness had been sent by registered post with acknowledgment due. That application for restoration of the appeal for rehearing was disposed of by the Appellate Tribunal by its order dated the 20th of June, 1970. In that order it has been said that the petition in question dated 5th January, 1970, was addressed to the Authorised Representative, Income-tax Appellate Tribunal, 50a, Gariahat Road, Calcutta, but it was not addressed to the Tribunal or the Assistant Registrar of the Tribunal due to an unfortunate mistake with the result that the petition in question was not before the Tribunal when the appeal came up for hearing. The Tribunal also said in that order that what has been submitted by the assessee may be true but the Tribunal refused the prayer to restore the appeal for the reasons stated in the order as follows :-- "the Tribunal has no power to cancel its order and to rehear the appeal when there is no mistake in its order apparent from the record. "

( 3 ) IN that state of the records the assessee made an application to this Court under Article 226 of the Constitution and obtained a Rule. In disposing of the Rule our learned brother Sabyasachi Mukharji, J. heard both sides and in consideration of the authorities placed before his Lordship he held that the"tribunal has the power and indeed the obligation to dispose of the appeal and pass such order thereon after giving both the parties in appeal an opportunity of being heard. It is necessary, therefore, that the tribunal should have all powers to ensure that the opportunity that the tribunal grants to the parties concerned is fair, adequate and proper. "his Lordship also held that it is a power incidental to or ancillary to the jurisdiction given to the tribunal and that jurisdiction is inherent power in an appropriate case to give a party an opportunity of rehearing after the appeal has been disposed of in the absence of the party. His Lordship pointed out that the tribunal has not exercised that jurisdiction because the tribunal thought that it had not any jurisdiction to give such an opportunity. It was argued before the learned Judge Sabyasachi Mukharji, J. that the assessee had his remedy against the decision made in the appeal on merits

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