Ram Vilas Mani Vs. Cit

.....that file of the cit (a) was before it while disposing of the appeal afresh. income tax act, 1961 s.253 constitution of india, 1950 article 227 in the allahabad high court r.k. agrawal & k.n. ojha, jj. - indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammad - 2. we are satisfied that even though the income tax appeal does not raise any substantial question of law which may be said to have arisen out of the order of the income tax appellate tribunal, allahabad dated 28-7-2003, but we are of the considered opinion that by the impugned order, miscarriage of justice has resulted for the following reasons adjournment application moved by the appellant had been rejected on the ground that there are more than one counsels.we have heard shri anil kumar pandey, learned counsel for the appellant and shri a.n. mahajan, learned standing counsel for the revenue.2. we are satisfied that even though the income tax appeal does not raise any substantial question of law which may be said to have arisen out of the order of the income tax appellate tribunal, allahabad dated 28-7-2003, but we are of the considered opinion that by the impugned order, miscarriage of justice has resulted for the following reasonsadjournment application moved by the appellant had been rejected on the ground that there are more than one counsels. the view taken may be correct, but taking into consideration that the tribunal had earlier directed the departmental representative to produce the file of the cit(a) for decision of the case before it and the departmental representative, however, did not produce the file of the cit(a) and adverse view against the appellant has been taken on the ground that the appeal was filed by different person and signatures was forged on the memo of appeal. as the file of cit(a) was not before the tribunal, the tribunal had no material whatsoever, to arrive at such a conclusion.3. in view of the foregoing discussions, we are inclined to interfere by exercising our powers conferred under article 227 of the constitution of india and, accordingly, we set aside the impugned order of the tribunal and direct the tribunal to decide the matter afresh after giving an opportunity to the appellant after ensuring that the file of the cit of relevant assessment year in question produced before it.the appeal is disposed of.