TMI Blog2022 (6) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, giving it a purposive construction, would warrant it to be given a retrospective effect Hon'ble Supreme Court has observed that This (the foregoing analysis) exactly is the justification to treat procedural provisions as retrospective , that, In Government of India Ors. v. Indian Tobacco Association [ 2005 (8) TMI 113 - SUPREME COURT] the doctrine of fairness was held to be a relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation and that The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of Maharashtra Ors. [ 2006 (7) TMI 648 - SUPREME COURT] - It was held that where a law is enacted for the benefit of the community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. Their Lordships also noted that this retrospectively being attached to benefit the persons, is in sharp contrast with the provision imposing some burden or liability where the presumption attaches towards prospectivity. What logically follows from the law so settled by a constitutional bench of the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dated 17th August 2021 to the effect Please consider the response uploaded. We have earlier uploaded our response on 10.03.2021 (screenshot attached for your ready reference) Kindly consider the same and allow us the opportunity of being heard through video conferencing mode . It is submitted that despite this specific request, and without disposing of the same, the assessee was declined an opportunity of hearing through the video conferencing, and the NFAC simply proceeded to dispose of the appeal on the basis of material on record. Learned counsel then invites our attention to the Hon ble Madras High Court s judgment in the case of Ramco Cements Ltd Vs National Faceless Assessment Centre [(2022) 442 ITR 279 (Madras)] in support of the contention that when such an opportunity of video conferencing is declined, without assigning reason, and the order is passed on the basis of material on record, the resultant order is required to be set aside and the matter restored to the file of the NFAC for an adjudication de novo. We are thus urged to remit the matter to the file of the NFAC with a direction that the first appellate authority grants an opportunity of hearing to the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of discretion to use or not to use these powers. It is so for the reason that when a public authority has the powers to do something, he has a corresponding duty to exercise these powers when circumstances so warrant or justify-a legal position which has the approval of Hon'ble Supreme Court . In the case of L. Hirday Narain v. ITO [(1970) 78 ITR 26 (SC)], Hon'ble Supreme Court has observed that If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for the exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private-of a citizen Of course, it is well within the powers of the Chief Commissioner or the Director-General concerned to decide on the prayer for personal hearing one way or the other, but he does not have a choice about taking or not taking a call on this request; s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these provisions in the new rules, the opportunity of a personal hearing, through video conferencing, is to be granted in all such cases in which the request for a personal hearing is made. There is no question of any discretion about allowing or not allowing the opportunity of a personal hearing, as upon a request being made by the assessee for a personal hearing, such an opportunity is required to be afforded to him. In any event, it is an amendment in the faceless appeal rules which is meant to obviate the undue hardships of the assessee in presenting their cases to the first appellate authority, and when such an amendment is made to cure the shortcomings of the scheme, and thus obviate the unintended hardships to the taxpayers, the amendment is to be treated as retrospective in effect. It is for the reason of the well-settled legal position that a curative amendment in the law is to be treated as retrospective in nature even though it may not state so specifically. In the Hon'ble Supreme Court's five-judge constitutional bench's landmark judgment, in the case of CIT v. Vatika Townships Pvt Ltd. [(2014) 367 ITR 466 (SC)], the legal position in this regard has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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