K.C. Agrawal, Actg. C.J.
1. This is an assessee's writ petition filed under Article 226 of the Constitution for a writ of certiorari quashing the judgment and order dated October 7, 1987, passed by the Income-tax Appellate Tribunal, A-Bench, Allahabad, in Miscellaneous Application No. 61 (Allahabad) of 1987 (Kripa Shanker v. Wealth-tax Officer).
2. 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 Hindu undivided families. Badri Prasad died leaving behind Kripa Shanker as his heir and legal representative. As against the orders passed under the wealth-tax assessment for the assessment years 1978-79, 1979-80, 1980-81, 1981-82 and 1982-83, the petitioner filed appeals before the Commissioner of Income-tax and Wealth-tax (Appeals), Agra, which were decided on October 20, 1986. As against the orders passed in the aforesaid appeals, the Wealth-tax Officer preferred appeals to the Income-tax Appellate Tribunal in respect of the assessment years 1978-79 to 1982-83. These appeals were numbered as W. T. A. Nos. 26 to 30 (Allahabad of 1987). The Income-tax Appellate Tribunal decided these appeals ex parte against the petitioner on March 9, 1987. The operative portion of these appeals are contained in paragraphs 5 and 6 of the judgment. The petitioner, thereafter, moved an application on April 29, 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 Section 253(4) of the Act, the Income-tax Appellate Tribunal could not decide the same. The assessee asserted in the application for setting aside the judgment of the Income-tax Appellate Tribunal that his counsel had also given advice to that effect. The application was rejected by the Income-tax Appellate Tribunal by the order dated October 7, 1987. Against this order, the present writ petition has been filed.
3. We have heard counsel for the parties and are of opinion that, on the facts and in the circumstances of the present case, the Income-tax Appellate Tribunal was wrong in deciding the appeal on March 9, 1987.
4. The appeal was fixed for hearing on March 4, and March 5, 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, 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 Income-tax Appellate 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 Sundaram v. Annangar [1890] ILR 13 Mad 492, the Division Bench laid down (headnote) :
'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.'
5. The assessee was misled by the 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 Income-tax Appellate Tribunal committed a mistake apparent on the face of the record.
6. 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.