JUDGMENT
Gopalan Nambiyar, C.J.
1. This appeal against the judgment of a learned judge raises a somewhat ticklish question. The appellant’s writ petition to quash Exs. P-11 and P-13 orders of the Agricultural Income-tax Appellate Tribunal and to direct the Tribunal to rehear the appeals, Exs. P-6 to P-8, preferred to it by the appellant, was dismissed by the learned judge on the short ground that an application for rectification, Ex. P-12, preferred to the Tribunal under Section 36 of the Act, was not maintainable under the said provision, and that, therefore, Ex- P-13 order rejecting the said application was quite proper and correct, with the result that there was no ground to interfere with the original order of the Tribunal, Ex. P-11, dismissing the appeals themselves on the merits.
2. The appellant owns nearly 74’29 acres of garden land and 13.6 acres of single crop wet land. His wife was the owner of about 51.71 acres of garden land. In assessing the appellant to agricultural income-tax for the years 1966-67, 1967-78 and 1968-69 by Exs. P-l to P-3 orders, the Agrl. ITO clubbed the income from the estate of the wife along with the agricultural income of the appellant. Appeals against these orders (Exs. P-6 to P-8) were dismissed by a consolidated order, Ex. P-5. Against the said order a further appeal was preferred to the Appellate Tribunal. An application was made under Section 34(c) of the Act to issue a commission to ascertain the yield and the income from the properties. This was allowed and a Commission was appointed for assessing the income. The Commission submitted its report. By Ex. P-11 order of the Tribunal dated November 15, 1972, the appeals were dismissed subject to a slight modification. The modification was only to the extent of excluding the income from certain portion of the land included in the assessment order. The appellant filed Ex. P-l2 application for rectification of the order of the Tribunal under Section 36 of the Act, read with Article 24 of the Kerala Agricultural Income-tax Appellate Tribunal Regulations, 1965. These provisions may conveniently be reproduced :
“36. Rectification of mistakes.–(1) The authority which passed an order on appeal or revision may at any time within three years from the date of such order passed by him on appeal or in revision, and the Agricultural Income-tax Officer may at any time within three years from the date of any assessment or refund order passed by him, of his own motion, rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall, within the like period, rectify any such mistake which has been brought to his notice by an assessee:…… ”
“Article 24. Restoration.–(1) Where a principal application is disposed of ex parte any absented party, if aggrieved, may apply to the Tribunal within 30 days from the date of communication of the order, for restoring such proceeding to the file and where it is shown to the satisfaction of the Tribunal that he was prevented by sufficient cause from appearing when the proceeding was called on for hearing the Tribunal shall restore the same and proceed with it.”
3. In Ex. P-12 application filed by the appellant it was stated that when the appeals before the Tribunal were heard on November 13, 1972, his advocate requested that the Commission report may be sent back to the Commission for rectifying certain mistakes and for submission of a fresh report and that the final hearing of the appeal may be deferred till the submission of the fresh report. It was averred :
” The advocate was under the impression that he will get an opportunity to argue in detail all other points in the objection and also regarding the legal question of the assessment on the property belonging to the wife.”
4. The prayer in the petition also was that the appellant may be given an opportunity to argue the appeal on the merits in the light of the contentions raised in the memorandum of appeal. Ex. P-13 dated 4th July, 1974, is a copy of the order of the Tribunal dismissing the application, In that order, adverting to the contention of the appellant, the Tribunal stated thus :
“According to the appellant’s learned counsel, he had argued only on the objections on the Commission report on that day and he was under the impression that the Tribunal would be remitting back the report to the Commission for clarification and rectification of the mistakes. It is alleged that he did not argue anything on the merits of the appeal. But, the Tribunal passed the order disposing of the appeal on November 15, 1972, without remitting the Commission report to the Commission. It is submitted that this is erroneous as the Tribunal has not considered the other contentions of the appellant raised in the memoranda of appeals and, therefore, he has prayed by these petitions to review the previous order of the Tribunal and give an opportunity to argue the appeals on merits. ”
5. Dealing with this contention, the Tribunal stated after quoting Section 36 :
” This section is empowering us only to rectify a mistake and the prayer before us is that this Tribunal has not considered certain contentions on merits and, therefore, the order of this Tribunal must be reviewed and the matter may be re-heard. So, as pointed out by the learned State representative, these applications will not come within the purview of Section 36 of the Agrl. Income-tax Act and hence there is no scope for any rectification of the earlier order. ”
6. Before us in the writ petition the above material has been supplemented by Ex. P-14 affidavit of the counsel who appeared before the Tribunal and argued the appeal and also the petition under Section 36 of the Act. In the affidavit the advocate stated :
” The Tribunal gave me the impression that they will give another opportunity to argue in detail all other points in the memorandum of appeal. But unfortunately without giving another opportunity to argue the other points raised in the memorandum of appeals, the Tribunal disposed of the appeals by order dated 15th November, 1972, without stating anything about the other grounds raised in the memorandum of appeals. The assessee pointed out what transpired on the date of hearing on November 13, 1972, in his affidavit before the Tribunal. Neither the Tribunal nor the State representative denied what was stated above at the time of hearing of the application filed under Section 36 of the Act. ”
7. The learned judge, in the course of his judgment under appeal, after noticing Ex. P-14 and the impression under which the counsel was left as recorded therein, observed that there was no reason to disbelieve the statement of the counsel who appeared before the Tribunal. Nevertheless the learned judge was of the view that Ex. P-11 cannot be regarded as an ex parte order, and that Section 36 of the Act would not be attracted to the case, to make a rectification possible. On this ground, the learned judge dismissed the writ petition.
8. The question on these facts and circumstances before us is whether grounds existed to rectify the order under Section 36 of the Act. The only ground under the section on which rectification of the orders is permissible is a mistake apparent on the record of the appeal, revision, assessment or refund. Our attention was drawn to the decision of the Supreme Court in ITO v. Asok Textiles Ltd, [1961] 41 ITR 732 which, among other cases, has expounded the distinction between the scope and ambit of the provisions of Order 47, Rule 1 of the CPC dealing with review and Section 35 of the Indian I.T. Act, 1922, providing for rectification of an order of assessment, on almost similar terms as the section with which we are concerned in the instant case. Our attention was also called to the decision of the Allahabad High Court in ITO v. Income-tax Appellate Tribunal [1965] 58 ITR 634, the facts of which come fairly near to the facts presented for our determination in the instant case. In particular we may call attention to the following observations (p. 641):
” It sometimes happens that grounds of appeal or contentions which were argued before the Tribunal are not dealt with or disposed of in the judgment and in order to rectify that apparent mistake an application under Section 35 is moved and the error which had crept in, not because of any fault of the assessee but solely that of the court, has been corrected. To hold now, as is contended for by the department, that Section 35 would not be applicable in cases where the court or the Tribunal has inadvertently omitted to deal with a particular ground of appeal or contention having an important bearing on the decision of the appeal would be to place unnecessary and unwarranted restriction on the provisions of Section 35 of the Act. The only conditions that are required to be satisfied under Section 35 are that it must be an error apparent on the record, and once that condition is satisfied there “can be no justification for limiting the powers of the departmental officers or the Tribunal to rectify that error.”
9. A little lower down, the court observed (p. 641):
” In my judgment, where an error which has crept in, is not as a result of any fault of the assessee but is one attributable entirely to the Tribunal in having lost sight of a material fact at the time of writing its order or judgment, which fact was duly brought to its notice by the asses-see, there would be an error apparent from the record which could be rectified under Section 35 of the Act.”
10. It will be noticed that the court was stressing a situation where the mistake or error was one which was the creation or contribution of the Tribunal itself, and not one resulting from an impression formed by the counsel who appeared in the case, which the Tribunal did nothing to create, and to which it did not contribute anything. Could it be said, in the circumstances that there was an error apparent from the records of the appeal ? We have no material on record to hold that the Tribunal either created, or contributed to the creation of, the impression in the mind of the counsel that the counsel was likely to be afforded a further innings to argue the appeal on the merits. But we do have sufficient material in the form of the averments in Exs. P-12 and P-14, to which we have called attention, to show that the counsel was under the impression that he would get such an opportunity. There is also the fact that Ex. P-14 affidavit of the counsel has been accepted by the learned judge against whose judgment this appeal has been preferred; at least, the learned judge saw no reason to discredit the same. Still, we are of the opinion that the mistaken impression with which counsel was left was certainly not a mistake apparent from the record of the appeal. We have to travel outside the record and enter the mind of counsel in order to get at the mistake. For this reason, we are in agreement with the Tribunal that no grounds for rectification of the order under Section 36 of the Act were disclosed and that its order rejecting the application for rectification (Ex. P-12), by Ex. P-13, was correct.
11. But, we are afraid that the matter would not rest there. The fact remains that what has been disclosed by Exs. P-12 and P-14–the latter of which has been accepted by the learned judge–is that the advocate was left with the impression that he would be afforded a further opportunity of arguing the appeal on the merits, and that he had only the chance of arguing the matter on the preliminary question as to whether the Commission’s report should be remitted for fresh consideration and for the submission of a fresh report. If this be the impression in which the counsel was left, and this is confirmed by the parties themselves in Ex. P-12 application, we are of the opinion that, in the circumstances, it cannot be said that the party or the counsel had been afforded a fair opportunity of being fully and fairly heard while dealing with, and disposing of, the appeal by Ex. P-11 order. In other words, we are of the opinion that there has been a violation of the principles of natural justice in not having afforded a full and fair opportunity to the counsel in arguing the appeal before the Tribunal on its merits. On this ground, we think the appellant is entitled to a quashing of Ex. P-l 1 order and to a remittal of the appeal to the Tribunal for fresh consideration and disposal on the merits. Further, we still have to resolve one difficulty. Exhibit P-l 1 order dated November 15, 1972, was communicated to the appellant on April 28, 1973 (vide Ex. P-12). The writ petition was filed on 5th September, 1974. But, in between, from May 28, 1973, to July 4, 1974, the appellant was prosecuting his application under Section 36 for rectification of the mistake. In view of this, we do not think we would be justified in counting delay and laches against the appellant. For the reasons detailed above, we allow this appeal and set aside the judgment of the learned judge. The appellant’s writ petition O.P. No. 4068 of 1974 will stand allowed and Ex. P-11 order of the Tribunal will stand quashed, with a direction to the Tribunal to dispose of afresh the appeals, Exs. P-6 to P-8, in accordance with law in the light of the observations contained in this judgment. There will be no order as to costs.
