2007 (7) TMI 469

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.... 2. Whether on the facts and in the circumstances of the case the Tribunal is right in law in not having posted the appeal for hearing and giving the appellant due notice of the same subsequent to the hearing of the miscellaneous petition filed by the appellant? 3. Whether on the facts and in the circumstances of the case the Tribunal is right in  law in passing the impugned order on the merits of the case in gross violation of the principles of natural justice?" 2. The appellant/assessee filed an application in IT (SS) No. 23 (MDS)/1996 under Section 254(2) of the Income-tax Act, 1961 for the block assessment years 1986-87 to 1996-97 which has been heard and decided by the Tribunal on 21-9-2004. The same is put....

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....the basis of the letter dated 20-11-1996 stated to be filed by the assessee. There is absolutely no detriment on the part of the Tribunal if an opportunity is given to the assessee to argue the issue on merits, by reopening the earlier order dated 21-9-2004. As the issue in dispute is in a narrow campus, when the matter was argued for admission, this Court issued notice to the counsel for the revenue and heard both sides today. 5. Learned Counsel for the revenue sought to sustain the order on the ground that the relief sought for in the miscellaneous petition was only for consideration of the issue raised in the petition pertaining to the deposit in three branches of the Indian Bank. While deciding the miscellaneous petition an oppo....

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.... on the issue which the Tribunal failed to decide while passing the orders on the appeal on 21-9-2004. In order to establish its case that the third addition is also uncalled for, the assessee may require to produce materials, which are factual in nature. The Tribunal, as an ultimate fact finding authority cannot shut the door at the threshold by directing the assessee to argue on the fact in issue while making arguments in respect of an application under Section 254(2) of the Act. No prejudice would be caused to the Tribunal if an opportunity is given to the assessee to adduce materials to establish its case on merits. The opportunity to be given to the assessee should be a real and reasonable opportunity and not an opportunity given for n....