Handtex Vs. Collector of Customs - Court Judgment

Excerpt:
1. the present miscellaneous application emerges from the tribunal's order no. 37/88-b2 dated 2nd february, 1988. the appeal was posted for hearing vide notice dated 14th december, 1987 issued on 15th december, 1987 and sent per registered a.d. post. the matter was listed for hearing on 19th january, 1988. nobody had appeared on behalf of the appellants on the date of hearing and the tribunal had disposed of the appeal on merits. in the present application, the applicants have made a prayer to rehear the appeal after giving an opportunity of being heard. the miscellaneous application is duly supported with an affidavit sworn before the oath commissioner. the matter had come up for hearing last on 7th september, 1988 and the judgment was reserved.before the order could be issued, a communication dated 23rd september, 1988 was received from the office of the senior superintendent of post ndsw division, new delhi -110021. the said communication was received in the registry on 26th september, 1988 to the effect that the registered letter no. 2049 dated 15th december, 1987 was served on the applicants on 16th december, 1987. since the intimation was received after the conclusion of the arguments, in the interest of justice, the hearing was reopened.2. shri s.k. beri, the learned advocate has appeared on behalf of the appellant. shri beri has argued that since the appellant did not receive the notice of hearing, in the interest of justice, the earlier order should be recalled. he has relied on the following judgments :-mangat ram kuthiala and ors. v. commissioners of income-tax, punjab and ors. (punjab and haryana high court) notice of 2. 92 i.t.r. 189 murlidhar surda v. income-tax appellate tribunal, calcutta and ors. where the tribunal had held that "if in a particular case it appears to the tribunal that the opportunity could not have been availed of by a particularly party as a result where of the party did not have the opportunity of placing its case before the tribunal, the tribunal would have the power to decide the appeal again on notice to the party or after giving the party an opportunity of being heard." the hon'ble calcutta high court had held that where the tribunal had passed an order in the absence of a party, it would have the power to pass such an order and rehear the appeal. 3. 99 i.t.r. 485 income-tax officer and ors. v. murlidhar sarda and anr. "the tribunal had inherent jurisdiction, ancillary to the jurisdiction given by section 254 of the income-tax act, 1961, to restore and rehear an appeal disposed of on the merits in the absence of any party who has been prevented by reasonable and sufficient cause from appearing before the tribunal at the hearing of the appeal and directed the tribunal to consider the application for restoration and rehearing of the appeal." 4. 120 i.t.c. 231 commissioner of income-tax, tamil nadu-iv v. income-tax appellate tribunal and anr. the tribunal has inherent powers to set aside an ex-parte order. 5. air 1976 delhi 111 jagat ram khullar and anr. v. battu mai where the hon'ble delhi high court had held that where "the notice was sent by registered post, bare statement on oath by addressee denying the tender and refusal to accept delivery is sufficient to rebut the presumption." the judgment of the delhi high court cited by shri beri, advocate, in the case jagat ram khullar and anr v. battu mal reported in air 1976 delhi 111, does not help him, as in the matter before us there is a documentary evidence on record that the notice of hearing was duly served and while reopening the case the tribunal had duly confronted the appellant in this regard and after this no counter-affidavit has been filed by the appellant and as such the benefit of this judgment cannot be extended to the applicant. documentary evidence is always superior to oral evidence.3. shri k. kumar, the learned sdr who has appeared on behalf of the respondent states that there is service of the notice on the applicant and as such the appeal may be dismissed.4. we have heard both the sides and have gone through the facts and circumstances of the case. the miscellaneous application making a prayer for the restoration of the appeal is duly supported by an affidavit of shri rattan lal sakhuja, partner of the appellant firm.the facts are not disputed. the notice of hearing dated 14th december, 1987 was issued on 15th december, 1987 for hearing on 19th january, 1988. by misc. order no. 50/88-b2 dated 10th october, 1988, the hearing was reopened on the following ground :- "after hearing both the sides, we had reserved the orders. before the orders could be dictated, the registry had received a communication no. cr3/489/88 dated 19th september, 1988 from the office of the senior superintendent of post offices, ndsw division, new delhi -110021 to the effect that registered letter no. 2049 dated 15-12-1987 was delivered to the appellant on 16th december, 1987. since this communication has been received after the hearing, in the interests of justice, we reopen the hearing and order that the matter will come up for hearing before the bench on 31st october, 1988." the appellant has not contradicted the written communication received from the postal authorities. the learned advocate had vehemently argued that there was no service of notice. the letter received from the postal authorities intimating that rl no. 2049 dated 15-12-1987 was delivered on 16th december, 1987 is reproduced below :- with reference to your complaint no. c/a. no. 415/83-b2 dated 10-8-1988. it is intimated that rl delivered on 16-12-1987.there is no dispute as to the powers of the tribunal. the tribunal has got inherent powers in view of the judgment of the hon'ble supreme court in the case of income-tax officer, cannanore v. m.k. mohammed kunhi reported in air 1969 s.c. 430. the judgments cited by the learned advocate do not help him as the facts in those case are different. in the matter before us, there is an intimation from the postal authorities as to the delivery of the registered letter containing the notice of hearing. the applicant has not been able to contradict this documentary evidence. accordingly, we do not find any merit in the application. the miscellaneous application is dismissed.

Judgment:
1. The present miscellaneous application emerges from the Tribunal's Order No. 37/88-B2 dated 2nd February, 1988. The appeal was posted for hearing vide notice dated 14th December, 1987 issued on 15th December, 1987 and sent per registered A.D. post. The matter was listed for hearing on 19th January, 1988. Nobody had appeared on behalf of the appellants on the date of hearing and the Tribunal had disposed of the appeal on merits. In the present application, the applicants have made a prayer to rehear the appeal after giving an opportunity of being heard. The miscellaneous application is duly supported with an affidavit sworn before the Oath Commissioner. The matter had come up for hearing last on 7th September, 1988 and the judgment was reserved.

Before the order could be issued, a communication dated 23rd September, 1988 was received from the office of the Senior Superintendent of Post NDSW Division, New Delhi -110021. The said communication was received in the Registry on 26th September, 1988 to the effect that the registered letter No. 2049 dated 15th December, 1987 was served on the applicants on 16th December, 1987. Since the intimation was received after the conclusion of the arguments, in the interest of justice, the hearing was reopened.

2. Shri S.K. Beri, the learned Advocate has appeared on behalf of the appellant. Shri Beri has argued that since the appellant did not receive the notice of hearing, in the interest of justice, the earlier order should be recalled. He has relied on the following judgments :-Mangat Ram Kuthiala and Ors. v. Commissioners of Income-tax, Punjab and Ors. (Punjab and Haryana High Court) Notice of 2. 92 I.T.R. 189 Murlidhar Surda v. Income-tax Appellate Tribunal, Calcutta and Ors. Where the Tribunal had held that "If in a particular case it appears to the Tribunal that the opportunity could not have been availed of by a particularly party as a result where of the party did not have the opportunity of placing its case before the Tribunal, the Tribunal would have the power to decide the appeal again on notice to the party or after giving the party an opportunity of being heard." The Hon'ble Calcutta High Court had held that where the Tribunal had passed an order in the absence of a party, it would have the power to pass such an order and rehear the appeal.

3. 99 I.T.R. 485 Income-tax Officer and Ors. v. Murlidhar Sarda and Anr. "The Tribunal had inherent jurisdiction, ancillary to the jurisdiction given by Section 254 of the Income-tax Act, 1961, to restore and rehear an appeal disposed of on the merits in the absence of any party who has been prevented by reasonable and sufficient cause from appearing before the Tribunal at the hearing of the appeal and directed the Tribunal to consider the application for restoration and rehearing of the appeal." 4. 120 I.T.C. 231 Commissioner of Income-tax, Tamil Nadu-IV v. Income-tax Appellate Tribunal and Anr. The Tribunal has inherent powers to set aside an ex-parte order.

5. AIR 1976 Delhi 111 Jagat Ram Khullar and Anr. v. Battu Mai Where the Hon'ble Delhi High Court had held that where "the notice was sent by registered post, bare statement on oath by addressee denying the tender and refusal to accept delivery is sufficient to rebut the presumption." The judgment of the Delhi High Court cited by Shri Beri, Advocate, in the case Jagat Ram Khullar and Anr v. Battu Mal reported in AIR 1976 Delhi 111, does not help him, as in the matter before us there is a documentary evidence on record that the notice of hearing was duly served and while reopening the case the Tribunal had duly confronted the appellant in this regard and after this no counter-affidavit has been filed by the appellant and as such the benefit of this judgment cannot be extended to the applicant. Documentary evidence is always superior to oral evidence.

3. Shri K. Kumar, the learned SDR who has appeared on behalf of the respondent states that there is service of the notice on the applicant and as such the appeal may be dismissed.

4. We have heard both the sides and have gone through the facts and circumstances of the case. The miscellaneous application making a prayer for the restoration of the appeal is duly supported by an affidavit of Shri Rattan Lal Sakhuja, partner of the appellant firm.

The facts are not disputed. The notice of hearing dated 14th December, 1987 was issued on 15th December, 1987 for hearing on 19th January, 1988. By Misc. Order No. 50/88-B2 dated 10th October, 1988, the hearing was reopened on the following ground :- "After hearing both the sides, we had reserved the orders. Before the orders could be dictated, the Registry had received a communication No. CR3/489/88 dated 19th September, 1988 from the office of the Senior Superintendent of Post Offices, NDSW Division, New Delhi -110021 to the effect that registered letter No. 2049 dated 15-12-1987 was delivered to the appellant on 16th December, 1987. Since this communication has been received after the hearing, in the interests of justice, we reopen the hearing and order that the matter will come up for hearing before the Bench on 31st October, 1988." The appellant has not contradicted the written communication received from the postal authorities. The learned Advocate had vehemently argued that there was no service of notice. The letter received from the postal authorities intimating that RL No. 2049 dated 15-12-1987 was delivered on 16th December, 1987 is reproduced below :- With reference to your complaint No. C/A. No. 415/83-B2 dated 10-8-1988. It is intimated that RL delivered on 16-12-1987.

There is no dispute as to the powers of the Tribunal. The Tribunal has got inherent powers in view of the judgment of the Hon'ble Supreme Court in the case of Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi reported in AIR 1969 S.C. 430. The judgments cited by the learned Advocate do not help him as the facts in those case are different. In the matter before us, there is an intimation from the postal authorities as to the delivery of the registered letter containing the notice of hearing. The applicant has not been able to contradict this documentary evidence. Accordingly, we do not find any merit in the application. The miscellaneous application is dismissed.