The ITAT has inherent and ancillary power to recall its order and grant a fresh hearing to a party in an appropriate case, where the party has not been given an opportunity to be heard before the disposal of the appeal.

SABYASACHI MUKHARJI, J.

( 1 ) IN this matter the assessment of the petitioner under the Indian Income-tax Act, 1922, for the assessment year 1961-62 was completed on the 30th November, 1965. It is not necessary to refer to the details of that assessment order. The petitioner preferred an appeal, being aggrieved by the said assessment order, to the Appellate Assistant Commissioner. On the 17th October, 1966, the Appellate Assistant Commissioner affirmed the order of the Income-tax Officer. On the 12th January, 1967, the petitioner filed an appeal before the Tribunal challenging the said order of the Appellate Assistant Commissioner. On the 20th December, 1969, notice was issued from the Income-tax Appellate Tribunal to the assessee, the petitioner herein, intimating that the appeal had been fixed for hearing on the 7th January, 1970. On the 5th January, 1970, the petitioner sent a letter by registered post with acknowledgment due praying for adjournment of the appeal on the alleged ground of illness of the petitioner. On the 6th January, 1970, the aforesaid letter was received. It has to be mentioned that the said letter was not addressed to the Income-tax Appellate Tribunal but to the authorised representative of the Income-tax Appellate Tribunal. On the 27th January, 1970, the Tribunal decided the said appeal without taking into consideration the adjournment petition. Inasmuch as the letter had been wrongly addressed, the aforesaid letter praying for adjournment by the assessee had not been placed before the Tribunal before the disposal of the said appeal. On the 12th February, 1970, the said appellate order was received by the petitioner and on the 7th March, 1970, the petitioner made an application for restoration of the said appeal and for fresh hearing as, according to the petitioner, the petitioner was prevented by sufficient cause from appearing on the date fixed for hearing of the appeal. On the 20th June, 1970, the Tribunal refused to restore the said appeal on the ground that it had no power to cancel the said order. It would be relevant at this stage to refer to the order of the Tribunal. The Tribunal, inter alia, stated as follows:"what has been submitted by the assessee may be true. However, (he 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. The prayer is accordingly refused. "

( 2 ) THEREUPON after obtaining certified copy of the said order the petitioner on the 25th September, 1970, moved this application under Article 226 of the Constitution challenging the aforesaid order of the Tribunal.

( 3 ) THE short question with which I am concerned in this application is whether the Tribunal had refused to exercise its jurisdiction which it had under the Act. The powers and jurisdiction of the Income-tax Appellate Tribunal in hearing the appeal are regulated by the provisions of Section 33 of the Indian Income-tax Act, 1922, which is similar to the provisions of Section 254 of the Income-tax Act, 1961. Sub-section (4) of Section 33 of the Indian Income-tax Act, 1922, provides as follows:" (4) The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. "

( 4 ) RULES have been framed for regulating the procedure of appeal before the Income-tax Appellate Tribunal. It is undisputed that there is no express provision either in the Act or in the Rules permitting or authorising the Income-tax Appellate Tribunal to deal with or dispose of an application of this nature made to it by the assessee in the present case after the disposal of the appeal. Counsel for the assessee, however, contended that this power was inherent and/or ancillary to or incidental to the power given to the Appellate Tribunal. It was on the other hand contended on behalf of the revenue that the Income-tax Appellate

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