JUDGMENT K. Sreedharan, J. 1. The issues raised in these Original Petitions are interrelated and the parties are same. So, I consider it advantageous to dispose of them by a common judgment. 2. Petitioner in O.P. 1503/1988 is a partnership firm, engaged in the business of purchase and sale of arrack and also Indian made foreign liquor. For the assessment year 1983-84, assessee filed return declaring a net loss of Rs. 14,27,810. The second respondent completed the assessment estimating the total income at Rs. 27,13,850. Accordingly, the firm was called upon to pay a sum of Rs. 9,76,199 as income tax. Aggrieved by the order of assessment, the firm filed an appeal before the Commissioner of Income Tax (Appeals). That appeal was rejected by order dated 16th December 1986. A second appeal was preferred to Income Tax Appellate Tribunal, Ernakulam against the order of the Commissioner of Income Tax (Appeals). A petition for stay of collection of tax was also moved before the Tribunal. Tribunal granted stay subject to the condition that the assessee should furnish sufficient security to the satisfaction of the department. The assessee complied with the conditions stipulated in the stay order. The Tribunal posted the appeal for hearing to 5th May 1987. It was the first posting of the appeal. The assessee was not aware of the posting since the matter was entrusted with their advocate. As the Advocate was away in Bangalore for arguing a case before the Settlement Commissioner, New Delhi in his camp sitting, his junior moved an application on 4th May 1987 for adjourning the case posted on 5th May 1987. Tribunal did not accept the request for adjournment and dismissed the appeal ex parte after hearing the departmental representative. 3. Petitioner received the order passed by the Tribunal on 30th May 198,7. Immediately, petitioner moved an application, M.P. 14/1987 in I.T.A. No. 29 (Coch)/1987 under proviso to R.24 of the Income Tax Appellate Tribunal Rules, praying for restoration of the appeal and for hearing the case on merits. Along with that petition, counsel who represented the petitioner also produced notice received by him from the Deputy Director of Investigation requiring him to appear before settlement Commissioner at 10.30 a.m. on 5 May 1987 at Bangalore. Along with that petition, counsel who represented the petitioner also produced notice received by him from the Deputy Director of Investigation requiring him to appear before settlement Commissioner at 10.30 a.m. on 5 May 1987 at Bangalore. Tribunal dismissed that application by order dated 17th August 1987 holding that the Tribunal has no power of review and hence it cannot review the earlier judgment. Counsel representing the petitioner then moved M.P. 37/1987 in M.P. 14 (Coch)/1987 under R.24 of the Income Tax Rules. In that, learned counsel gave the entire circumstances under which he happened to be absent before the Tribunal when the appeal came up for hearing on 5th May 1987 and prayed for rehearing the appeal. That application was rejected by the Tribunal by its order dated 20th January 1988 on the ground that assessee has not brought out any mistake as such arising from the order of the Tribunal. Hence this Original Petition. 4. Petitioner moved C.M.P. 4551/1988 in O.P. 1503/ 1988 praying for stay of all proceedings for the recovery of income tax for the assessment year 1983-84. On 24th February 1988, this Court directed the petitioner to pay 50 per cent of the tax due for the year 1983-84 within one month. In compliance with that order, assessee paid Rs. 4,63,650 on 23rd March 1988. 5. Immediately after the disposal of. the appeal by the Tribunal, respondents passed orders of assessment on the partners of the firm on the share income, as evidenced by Exhibits P-2 (a) to P-2 (g) in O.P. 1859/1988. The partners were also informed that penalty proceedings under S.271(1)(a) and 273(1)(b) of the Income Tax Act have been initiated separately. Partners of the firm challenged the above orders of assessment in appeal before the Commissioner of Income Tax (Appeals), Ernakulam. The appellate authority rejected those appeals on the ground that the share income from the firm is as per the assessment order of that firm and the firm had filed an appeal separately and consequently partners are barred from agitating in appeals preferred against their own assessment orders." This order is under challenge, in O.P. 1859/1988. 6. Petitioners in O.P. 1859/1988 moved C.M.P. 5613/1988 praying for stay of all proceedings for the realisation of the tax assessed against them. This Court on 29th March 1988 directed the petitioners to remit a sum of Rs. 6. Petitioners in O.P. 1859/1988 moved C.M.P. 5613/1988 praying for stay of all proceedings for the realisation of the tax assessed against them. This Court on 29th March 1988 directed the petitioners to remit a sum of Rs. 7,50,000 towards the tax liability within one month. Learned counsel representing the petitioners submitted that the said amount has already been remitted. 7. Assessment order passed against petitioners in O.P. 1859/1988 will depend on the decision in O.P 1503/ 1988. In O.P. 1503/1988 the short question that arises for consideration is whether the Tribunal had complied with the principles of natural justice in disposing of appeal, I.T. A. 29 (Coch)/1987. 8. It is common case that I.T.A. 29 (Coch)/1987 came up before the Tribunal for the first time on 5th May 1987. It has also come out that Shri P. Ramanarayanan was the counsel representing the appellant before the Tribunal. Since Shri P. Ramanarayanan was out of station, his junior filed an application on 4th May 198 7 praying for an adjournment of the case. That application for adjournment was rejected and the Tribunal proceeded to dispose of the appeal on the basis of records, because it had stayed the recovery of the tax, on the assessee, furnishing security for the amount. By this, no effective opportunity was afforded to the appellant to argue the case before the Tribunal. As observed by a Bench of this court in Thampi v. Collector of Central Excise 1989 (2) KLT 65 , the concept of fair play in action which is the basis of natural . justice must depend upon the particular lis between the parties. Rules and practices are constantly developing to ensure fairness in the making of decisions which affect people in their daily lives and livelihood. The order passed by the Income Tax Appellate Tribunal adversely affects the firm and its partners. It has resulted in civil consequences. The firm had entrusted the matter with an Advocate. On account of the absence of the Advocate, the appellant sought an adjournment. The Advocate himself filed M.P. 37/1987 in M.P. 14/1987 explaining the reason for his absence. Inspite of all these facts, Tribunal did not afford the firm an opportunity to represent its case in detail. Hence, according to me, the Tribunal committed a breach of the rule 'audi alteram partem' in disposing of the appeal before it. 9. The Advocate himself filed M.P. 37/1987 in M.P. 14/1987 explaining the reason for his absence. Inspite of all these facts, Tribunal did not afford the firm an opportunity to represent its case in detail. Hence, according to me, the Tribunal committed a breach of the rule 'audi alteram partem' in disposing of the appeal before it. 9. The further question that is to be considered in this case is whether the Income Tax Appellate Tribunal has the jurisdiction to rehear the appeal, which was disposed of on merits. This issue was considered by a Division Bench of this Court in Commissioner of Income Tax v. Income Tax Appellate Tribunal (1979) 120 ITR 231. In that case, the Income Tax officer preferred an appeal to the Tribunal. The assessee filed a cross objection, supporting the order of the Appellate Assistant Commissioner. On the date appointed for hearing, neither the assessee nor his representative was present. The Tribunal allowed the appeal and dismissed the cross objection. The decision was rendered on merits. Assessee filed a Miscellaneous petition before the Tribunal for the restoration of the appeal and the cross objection, for fresh hearing and disposal. The Tribunal allowed the Miscellaneous Petition and reposted the appeal for hearing. That action of the Tribunal was challenged before this Court by the Commissioner of Income Tax on the ground that the Tribunal has no power to review its earlier order. This contention was negatived, observing: "The power of setting aside an ex parte order to afford an opportunity of being heard to the aggrieved party is not the same as the power of review. The question of review ordinarily arises where the order impugned is vitiated on account of some mistake or error apparent on the face of the record, or where there was failure to consider the material on record. The purpose of setting aside an ex parte order is to consider the whole matter afresh affording an opportunity of being heard to the respondent. When this distinction is borne in mind, there is no scope for the argument that because the Tribunal has no power to review its own order, it cannot also set aside its ex parte order for affording an opportunity of being heard to the respondent." This statement of law applies on all fours to the facts in this case. When this distinction is borne in mind, there is no scope for the argument that because the Tribunal has no power to review its own order, it cannot also set aside its ex parte order for affording an opportunity of being heard to the respondent." This statement of law applies on all fours to the facts in this case. Assessee was not represented before the Tribunal on account of his counsel being away at Bangalore to appear before the settlement Commissioner. The Tribunal disposed of the appeal after perusing the records. That decision had far reaching civil consequences on the assessee. Consequently the disposal of the appeal was in violation of the principles of 'audi alteram partem'. The prayer in such a situation for rehearing the appeal is not a prayer" to review its earlier decision. It is to set aside its ex parte order for affording an opportunity of being heard. This power is inherent in the Tribunal. The Tribunal has refused to exercise that power for no justifiable reason. Therefore, I quash Exhibits P-9 and P-11 orders and direct the Income Tax Appellate Tribunal, Cochin to restore I.T.A. 29 (Coch)/1987 and to dispose of the same afresh, after affording the appellant a reasonable opportunity of being heard in the matter. Depending on the result in that appeal, Income Tax Officer, Central Circle-II, Ernakulam and Income Tax Officer, Kottayam are directed to pass fresh orders of assessment if any, as required by law, on the share income of the partners of the firm. Original Petitions are disposed of in the above terms.