1983 (8) TMI 248

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....958 (for short "the Act"). As the assessee did not appear at the hearing, the assessing authority passed ex parte assessment orders on 26th June, 1972 (annexures DI to D5). The petitioner assailed the said assessment orders by filing a petition under article 226 of the Constitution before this Court which was registered as Misc. Petition No. 737 of 1972 at the main seat at Jabalpur. The said petition was transferred for hearing to this Bench when it was renumbered as Misc. Petition No. 301 of 1976. This petition was dismissed by this Court as having abated under section 58 of the Constitution (42nd Amendment) Act, 1976, by order dated 24th September, 1979. After the dismissal of the said petition the petitioner approached the Government by....

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....tural justice. 5.. We would have ordinarily set aside the impugned order on the said ground. However, we find that the application submitted by the petitioner to the State Government under section 39(6) of the Act was not maintainable because the conditions for making such an application did not exist. Section 39(6) of the Act reads as follows: "Notwithstanding anything contained in sub-section (1), but subject to such restrictions and conditions as may be prescribed, where on an application made by a dealer the State Government is of the opinion that hardship is being caused to such dealer due to any order passed under any of the provisions of the Act other than an order under section 22 or an order passed in pursuance or in consequence....

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....er. The proviso to section 39(6) of the Act does not empower the Government to relax the said conditions. In the circumstances, we are of the opinion that it is not a fit case in which we should exercise the extraordinary powers of this Court under article 226 of the Constitution because no purpose would be served by setting aside the impugned order passed by the Government. 9.. The learned counsel for the petitioner also contended that as the earlier petition filed by the petitioner was dismissed as having abated by reason of the provisions of section 58 of the Constitution (42nd Amendment) Act, 1976, and that as that provision has since been repealed this Court should set aside the orders passed by the assessing authority in reassessment....