TaxTMI 
TaxTMI 
2020 (10) TMI 26
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....or or omission as specified therein being brought to notice of the Tribunal. The assessee, on the other hand, relying on the following decisions, claims that inasmuch as no objection was raised by the Revenue at the time of hearing of its' appeal before the Tribunal (on 23/08/2019), it could not raise any objection now, neither could it possibly place any material in substantiation of its claims at this stage inasmuch as the mistake rectifiable u/s. 254 (2) is to be with reference to the material on record, i.e., already on the file of the Tribunal: CIT vs. Shri Shanthinath Benefit Fund Ltd. [2015] 371 ITR 0271 (Mad) Pothina Venkateswara Swamy vs. ACIT [2014] 369 ITR 0639 (AP) Dholadhar Investment Pvt. Ltd. vs. [2014] 362 ITR 0111 (Del) 3. We have heard the parties, and perused the material on record. 3.1 The facts and circumstances of the case as well as the arguments advanced, even as explained at the time of hearing the petition, are the same as for another set of Miscellaneous Applications; the Tribunal, on 23/8/2019, dismissing as not maintainable 200 appeals by the Revenue (and connected COs by the assessees) u/s. 268A of the Act vide two orders, of which one was in ....
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....se doing per its instant applications u/s. 254(2). This is in view of the manner in which the hearing in the matter took place. The impugned order dismisses 84 appeals by the Revenue and 12 COs by the assessees at one go. Another 104 appeals/COs, heard simultaneously, were also dismissed along with, albeit per a separate order; the hearing in all cases concluding within a few minutes. The appeals were 'heard' en masse, without affording any specific opportunity to the Revenue to raise any objection, seriously violating the principles of natural justice. In fact, given the short time frame in which the appeals were fixed, even the notices were not sent to the parties; the list/s itself being finalized only a couple of days prior to the date of their listing. The ITAT Bar and the office of the Departmental Representatives were intimated of the posting, conveying the lists on being finalized on 20/8/2020, & on 22/8/2020, i.e., the revised lists. A fair hearing itself demands adequate notice, and by convention four weeks time is given by the Tribunal. Why, the order dated 14/8/2019 in ITO v. Dinesh Madhavlal Patel & Ors. by the Ahmedabad Bench of the Tribunal, a common order dismissing....
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....evertheless been dismissed by it in limine. Para 7 of the Tribunal's order, also read out during hearing, reads as under: '7. It may be clarified that though every care has been taken by the Registry of the Tribunal in identifying the listed appeals, it may yet be that some error in working the tax effect may have occurred. It may also be that an appeal/s is otherwise saved by the exceptions listed at para 10 (scope of which stands widened vide amendment dated 20/8/2018) or para 11 of the Circular. Similarly, it may be that a CO/s bears an independent ground/s, raised for adjudication. Accordingly, liberty is hereby granted to the parties to, where so, move the Tribunal in this regard, in which case it shall, where satisfied on merits, recall an appeal/s or, as the case may be, a CO/s, for being heard on merits. Further, the recall of an appeal would be accompanied by the recall of the assessee's corresponding CO, if any, dismissed along with. Needless to add, the Tribunal shall, while doing so, which shall be per a speaking order, grant an opportunity of hearing to the other side.' (emphasis, ours) Similar liberty, it may be noted, was also provided by the Tribunal in Dinesh Ma....
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....nces; the same, rather, in view of the position of law as clarified thereby, does that of the Revenue. Each of the Revenue's applications are liable to be allowed, restoring the appeals (along with the COs, if any) for being heard on merits, subject to the satisfaction, after hearing the parties, that the appeals are not covered by the extant circular/s. 3.3 That apart, the authorization memo dated 30/10/2018, filed along with the appeal memo, forms part of the Tribunal's record. The same, reproduced hereinbefore in its relevant part, clearly states that the instant appeal is being filed by the Revenue despite it being a low tax-effect matter in view of cl.10(c) of circular 3/2018. Section 268A, introduced by Finance Act, 2008, w.r.e.f. 01/4/1999, reads as under: '268A. (1) The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income-tax authority under the provisions of this Chapter. (2) Where, in pursuance of the orders, instructions or directions issued under sub-section (1), an income-tax au....
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.... the Tribunal to Rs. 50 lacs. The other terms and conditions of the earlier circular continued to be in force. The filing of the instant appeals, in view of the applicability of cl.10(c) of circular 3/2018, as clarified by the authorization memo, was thus a circumstance attending the filing of the appeals in the instant case. The Tribunal was therefore obliged to have regard thereto. It was open for the Tribunal to, where in doubt, or in order to satisfy itself, or as a matter of abundant caution, require the Revenue to place on record the copy of the revenue audit objection, or make such other inquiry or verification in the matter as deemed fit and proper, i.e., to ascertain if the appeals were indeed excepted or not. We have already stated of the absence of the due process of hearing while disposing these appeals by the Tribunal, so that there was no question of either any objection being raised by the Revenue, or calling for any substantiation therefrom by the Tribunal. In fact, an examination of the authorization memos u/s. 253(2), which accompany Form 36 and, thus, form part of the Tribunal's record, by it's Registry while fixing the appeals where the tax-effect was lower tha....
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....onsideration on merits. The two, i.e., 'Ground of Appeal' and 'Objection', operate in different fields, with no interface. Further, it may be that an appeal, validly filed, may in time get covered by a subsequent circular u/s. 268A. It could be that such an appeal is though excepted by a subsequent circular/s, and therefore the authorization memo, already submitted, does not bear reference to the excepting clause, which, even otherwise, though desirable, is not an essential element/ingredient of an authorization memo u/s. 253(2). As such, even the absence of a reference to the excepting clause therein would not per se preclude the Revenue to raise an objection before an appellate authority in its respect, claiming exclusion under a particular clause of the relevant circular/s. We are in this supported, apart from the principles of natural justice, by the decision in Concord Pharmaceuticals Ltd. (supra). Of course, the onus in such a case, given the prima facie applicability of the circular, to satisfy the court/tribunal as to the non-applicability of the circular, and thus of s. 268A, would be on the Revenue. In fact, in the context of the argument advanced, i.e., of the objection ....
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....n is on the Revenue; the Board having been thereby empowered by law to limit the discretion of an income tax authority in respect of filing of an appeal/application for reference. The Revenue, accordingly, per internal instructions/directions, instructs its field officers to do so, i.e., as and when a new circular, in supersession or modification of an earlier one, is issued u/s. 268A(1), to bring the same to the notice of the appellate forums, intimating their withdrawal or non-pressing thereof. It is this identification that took precedence with the Tribunal. Perhaps anxious to arrive at the actual amount locked in tax litigation before it, it embarked on the said exercise, as part of a responsive judiciary, which also explains the departure from the established norms of judicial hearing. We have already observed that it, in doing so, acted with circumspection, providing liberty to the parties in case of any error or omission in dismissing an appeal/CO thus, balancing thus the need for retaining only maintainable tax litigation on its records, with the paramount concern for not causing any prejudice. In fact, the arguments emanating from both the sides in the instant cases, with ....