Inherent tribunal power to recall ex parte dismissal upheld where notice was not in fact served

A second writ petition was held maintainable because the earlier petition sought different relief and the present challenge to the Tribunal's default dismissal had not been raised earlier; the delay was treated as explained rather than negligent. The High Court also recognised that a mandatory hearing requirement cannot be defeated by a rebuttable presumption of service from a returned registered cover, and that a tribunal may exercise inherent jurisdiction to recall an ex parte dismissal where notice was in fact not served or where denial of recall would deprive the party of the statutory opportunity of hearing. The dismissal order was quashed and the matter remitted for decision on merits.

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Issues: (i) Whether the second writ petition was incompetent on the ground that an earlier petition between the same parties had failed and the present relief could have been claimed earlier, and whether delay barred the petition. (ii) Whether the Appellate Tribunal had inherent jurisdiction to recall its order dismissing the appeal for default where the assessee asserted that no notice of hearing had in fact been served.

Issue (i): Whether the second writ petition was incompetent on the ground that an earlier petition between the same parties had failed and the present relief could have been claimed earlier, and whether delay barred the petition.

Analysis: The earlier proceeding sought a different relief and did not ask for quashing of the Tribunal's order dismissing the appeal for default. The present petition was therefore not a ation of the same cause on the same footing. Mere omission to claim the present relief in the earlier petition did not create incompetence. The delay was explained by the petitioners as arising from the course of the earlier proceedings and the position taken before the Tribunal, and it was not treated as gross negligence.

Conclusion: The petition was maintainable and was not barred on the grounds of prior application or unexplained delay.

Issue (ii): Whether the Appellate Tribunal had inherent jurisdiction to recall its order dismissing the appeal for default where the assessee asserted that no notice of hearing had in fact been served.

Analysis: The requirement of hearing under the appellate provision is mandatory. A returned registered cover may raise a presumption of service, but that presumption is rebuttable. If the assessee is allowed to prove that the cover was never presented and that there was in fact no refusal, denial of such opportunity would amount to denial of hearing. The absence of an express rule in the Act or Rules did not exclude inherent jurisdiction where an order is shown to have been made in circumstances such as non-service, fraud, palpable mistake, or ignorance of a clear statutory provision. The Tribunal, therefore, could entertain and decide the application seeking recall of the ex parte dismissal.

Conclusion: The Tribunal had inherent jurisdiction to recall the dismissal order and to hear the application on merits.

Final Conclusion: The order dismissing the appeal for default was quashed, and the Tribunal was directed to dispose of the assessee's application according to law after considering the merits.

Ratio Decidendi: A quasi-judicial appellate tribunal has inherent power to recall an ex parte dismissal where the applicant shows that notice was not in fact served and that denial of recall would deprive the party of the statutory opportunity of being heard.

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