TMI Blog2008 (5) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... . Delay in filing cross objections (filed on 9-8-2001) condoned since, DR has no objection. Registry is directed to club the cross objection and post it together. Both the parties informed." Thereafter, hearing adjourned on a number of occasions and the appeals of all other years along with the cross objections were consolidated. It emerges out from the record that all the appeals and the cross objections were listed on 20-2-2006 before the "C" Bench. The hearing was adjourned to 5-6-2006, which was informed to the parties. According to the assessee, it transpires that hearing was preponed to 1-5-2006 and the appeals were heard ex parte qua the assessee. The Tribunal has decided the appeals vide order dated 16-5-2006. The Tribunal has partly allowed the appeals of the revenue and dismissed the cross objections of the assessee. In para 11 of the Tribunal s order it is observed that the cross objections filed by the assessee are barred by limitation. The assessee has not filed any petition for condonation of delay nor any one was present at the time of hearing to explain the reasons for the delay. In these circumstances the Tribunal rejected the cross objections of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the first two fold of submissions are concerned, we are of the view that Tribunal has committed an apparent mistake. The delay in filing the cross objection has been condoned by the Tribunal vide its interim order dated 15-7-2002, extracted supra in assessment years 1990-91 and 1991-92. Similarly applications for condonation of delay have been filed by the assessee in other years therefore the Tribunal has erred in appreciating the facts and reached on wrong conclusion while making following observation in Para No. 11 of the order which reads as under : "11. The Cross Objections filed by the assessee are barred by limitation The assessee has not filed any petition for condonation of the delay, no anyone was present at the time of hearing to explain the reasons for the delay. In these circumstances, we reject the assessee s Cross Objections as time-barred." In view of this apparent error we recall our order dated 16-5-2006 and restore all these appeals along with the Cross Objections to their original numbers. 6. However, as far as the third fold of submission is concerned in our opinion this submission deserves to be rejected. Section 255 of the Income-tax Act provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, so as to allow the parties sufficient time to appear and be heard in support of or against the appeal." On conjoint reading of sub-section (1) and sub-section (5) of section 255 along with the rules 3 and 4 of the ITAT Rules make it clear that power of constituting the Bench and allocating the work amongst the Members vest with the Hon ble President. Sub-rule (2) of rule 4 provide that where there are two or more Benches of the Tribunal working at any head quarter the President or in his absence Sr. Vice President, Vice President or Sr. Member of the station may transfer an appeal or an application from any one of such Benches to any other Bench. Thus jurisdiction lies with the VP to fix a particular appeal at Mumbai Benches before a particular Bench. Such powers flows from the above rules. 7. The ld. Vice President in order to streamline the disposal of old appeals pending at Mumbai had convened a meeting of Departmental Representatives represented by ld. Chief Commissioner deputed at ITAT along with Sr. Commissioners and representatives of Bar Association. It was felt that the appeals filed prior to 1999 would be disposed off on priority basis being old appeals. To ach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Rajasthan moved an application under rule 55 of the High Court Rules with a prayer that since challenge to the legality and validity of the constitution of the Bench of the High Court at Jaipur had been raised by Petitioner No. 2 the writ petition should be referred to a Division Bench for hearing. The Hon ble Chief Justice on 8-9-1997 by an administrative order directed that application filed by the Additional Advocate General be put up for orders on the next day at 10.30 AM. On the next day the Hon ble Chief Justice transferred the writ petition to a Division Bench and the Hon ble Division Bench has dismissed the writ petition on 10-9-1997. Before the Hon ble Justice Shethna a criminal revision was listed for admission and bail. On 3-9-1997 the Hon ble Judge has adjourned the hearing to 5-9-1997 and directed the Registry to list revision and other part heard cases on a separate board. The Registry put the matter before the Hon ble Chief Justice. The Hon ble Chief Justice observed that there will be no roster for Hon ble Justice Shethna for sitting in Single Bench on 5-9-1997 part heard matters may be listed for hearing on some other day, some time next week as the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the full rate of Rs. 250 per day, to which "they were not entitled", and had thereby committed "criminal misappropriation of public funds" while making comments on the merits of the disposed of writ petition?" In this context the Hon ble Supreme Court has considered the rules 54 and 55 of the High Court Rules, which read as under : "Rule 54. Constitution of Benches. Judges shall sit alone or in such Division Courts, as may be constituted from time to time and do such work, as may be allotted to them by order of the Chief Justice or in accordance with his direction. Rule 55. Jurisdiction of a Single Judge. Except as provided by these Rules or other Law, the following cases shall ordinarily be admitted, heard and disposed of by a Judge sitting alone, namely, ( xi )the writ petition under Articles 226 and 227 of the Constitution of India, except the writ petitions challenging the vires of the provisions of any Act or Rules made thereunder and Writs against the order of the Board of revenue, the Rajasthan State Service Appellate Tribunal. ( xii )an application under Article 228 of the Constitution of India and the case withdrawn under the said Article : Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther. According to rule 19 of the ITAT Rules the date and place of hearing would be notified. Rule 20 provide the manner to fix the hearing. In our opinion the ld. Vice President while exercising his administrative powers flowing from rule 4 read with rules 19 and 20 has rightly preponed the hearing of all the appeals to an early date with a view to streamline the disposal of old appeals. There is nothing wrong in the procedure adopted. It does not amount to review of the order of Bench. After adjourning the hearing on 20-2-2006 the Bench ceases to have control over these appeals. It is not sure whether on 5-6-2006 "C" Bench would function or not, because functioning of that Bench would depend upon the roster to be prepared by the Registry on the order of Hon ble President or Hon ble Vice President, as the case may be according to the practice adopted in the Tribunal. It can be looked into with one more angle, i.e., if we accept the arguments of ld. Counsel ignoring the rules regulating the constitution of Benches etc., then in any case the "C" Bench has to be constituted for 5-6-2006, otherwise alleged order of the Bench dated 20-2-2006 adjourning the hearing for 5-6-2006 would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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