JUDGMENT PRAKASH KRISHNA J.
1. This writ petition has been pressed for a writ, order or direction in the nature of certiorari for quashing the order dated November 30, 1999, passed by the Commissioner of Income-tax, Agra.
The Commissioner of Income-tax by a common order has disposed of five revisions filed under Section 264 of the Income-tax Act, 1961. These revisions were filed against the assessment order passed on March 12, 1997, for the assessment year 1988-89. The petitioners entered into a partnership agreement on March 1, 1988. The capital in cash was raised by them for the newly constituted firm. The said cash was seized by the police on March 23, 1988, and was handed over to the Income-tax Department. The cash, thus, seized was assessed in the hands of Shri Ramesh Kumar (owner of the car) on substantive basis and protective assessments have been made in the case of the petitioners.
2. All the five revisions were heard and decided ex parte in the absence of the petitioners or their counsel as on the date fixed, i.e., November 30, 1999, none appeared before the Commissioner of Income-tax, Agra. The Commissioner of Income-tax, Agra, has also recorded the finding on the merits of the case.
3. Challenging the impugned common orders passed in the above five revisions, Shri Rakesh Ranjan Agrawal, counsel for the petitioners submitted that the Commissioner of Income-tax, Agra, committed illegality in not entertaining the adjournment application which was sought to be filed on November 30, 1999, and deciding the matter on the merits, ex parte. In contra, Shri Shambu Chopra, learned counsel for the Department, submitted that sufficient opportunity was afforded by respondent No, 2 and as such no interference is needed in the matter.
4. In paragraphs Nos. 23, 24 and 25 of the writ petition it has been stated that the notices dated November 17, 1999, fixing November 30, 1999, were received very late and there was no sufficient time for the preparation of the case. The petitioner wanted to engage Shri B. B. Khare, advocate of New Delhi, but on account of his prior professional commitments, Shri Khare asked the petitioners to seek adjournment on November 30, 1999. For this purpose the petitioners engaged Shri Kuldeep Arora, a chartered accountant of Mathura to seek adjournment before the Commissioner of Income-tax, Agra. It has been further stated in para. 25 that on November 30,1999, petitioner No. 2 and Shri Hari Om Agrawal along with Shri Kuldeep Arora appeared on November 30, 1999, before respondent No. 2 and sought the adjournment. Respondent No. 2 refused to entertain the request for adjournment and informed the chartered accountant to argue the matter on the merits. It has been further stated that Shri Arora was engaged only for a limited purpose to seek adjournment and was not prepared to argue the case on the merits. In this view of the matter according to the petitioners, no proper opportunity of hearing was afforded by respondent No. 2 before passing the impugned order.
On January 7, 2003, this court directed the petitioners to file affidavit of Shri Kuldeep Arora, the chartered accountant. The necessity to pass that order arose on account of the fact that in the writ petition it was mentioned that the petitioners appeared before respondent No. 2 along with Shri Kuldeep Arora and sought adjournment but in the impugned order it was mentioned that none appeared on behalf of the petitioners. In compliance with the aforesaid order, Shri Kuldeep Arora has filed affidavit which is on record.
On behalf of the Department counter affidavit and supplementary affidavits have been filed of one Shri Shreedhar Chaturvedi, the Income-tax Inspector of Mathura. The said Inspector appears to be attached with the Deputy Commissioner (Tax), Mathura. The Department in reply has refuted the allegations made in the writ petition. Shri Shreedhar Chaturvedi, the Income-tax , Inspector has filed counter affidavit on behalf of the Department and has stated that on November 30, 1999, none appeared on behalf of the petitioners nor any adjournment was sought for, vide para. Nos. 26 and 27 of the counter affidavit. In the supplementary affidavit Shri Shreedhar Chaturvedi has denied the allegation of the petitioners that any adjournment application was sought to be filed by the petitioners on November 30, 1999.
5. Heard counsel for the parties and perused the record. Admittedly, November 16,1999, was the first date fixed in the matter. According to the petitioners they attended the office on November 16,1999 and were told that a fresh date will be fixed for which necessary information shall be given. Thereafter November 30, 1999 was the date fixed and the information of the said date was given through a letter dated November 17, 1999. The controversy between the parties as to whether on that date the adjournment was sought by the petitioners or not. In the impugned order it is mentioned that on November 30,1999, no one attended. The petitioners have come forward with specific allegation that an adjournment was sought on November 30, 1999. In support of the writ petition, affidavit of petitioner No. 1 has been filed. A rejoinder affidavit of Shri Hari Om Agrawal petitioner No. 3 has also been filed. In para. No. 19 of the rejoinder affidavit averments made in the writ petition have been reiterated. On the other hand the Department has filed an affidavit of the Income-tax Inspector, Shri Shreedhar Chaturvedi. The contents of the counter affidavit of Shri Shreedhar Chaturvedi are sworn on personal knowledge. It is not understandable as to how an Inspector of Mathura can say on personal knowledge about a thing that happened before the Commissioner of Income-tax, Agra. At best some official of the office of the Commissioner of Income-tax, Agra, could have had any knowledge in the matter. This is an important factor which has been taken into consideration coupled with the fact that there is no allegation of mala fides against the petitioners of seeking adjournment or in any way delaying the hearing of the revisions. At the most November 30, 1999, was the second date fixed for hearing. In this view of the matter, it is in the interest of justice that a fresh opportunity of hearing should be afforded to the petitioners. Secondly, in the facts of the present case it is the petitioners who are the sufferers on account of the delay in disposal of the case. The cash seized from the car is left with the Department and the Revenue is not going to suffer in any manner in case the impugned order is quashed.
6. A dispute as far as possible should be decided on the merits after affording reasonable opportunity of hearing to the parties. In such matters the court should adopt a liberal and justice oriented approach. (Collector Special Land Acquisition Officer v. Mst. Katiji [1987] 167 ITR 471; AIR 1987 SC 1353).
In view of the above the writ petition is allowed. The impugned order dated November 30, 1999, passed by respondent No. 2 is quashed. Respondent No. 2 is directed to hear and decide the revisions afresh after affording an opportunity of hearing to the petitioners. It is made clear that the petitioners shall not seek any unnecessary adjournment in the matter and shall extend full co-operation for the early disposal of the revisions. In case it is found that the petitioners are seeking unnecessary adjournments, then, respondent No. 2 is free to pass appropriate orders in accordance with law for the assessment year 1988-89.