TMI Blog2020 (10) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Our clear view, dismissal of the Revenue s appeals by the Tribunal, in view of the authorization memo dated 30.10.2018 on record, clearly stating of the appeal being filed, despite its low tax effect, is, in view of cl.10(c) of the Board circular 3/2018 dated 11.07.2018, a clear case of a mistake manifest on record. We have already clarified that the authorization memo, an official document, can still be subject to verification by the Tribunal so as to satisfy itself, which itself implies having regard thereto, which the law obliges it to. Revenue s instant applications are, therefore, admissible, and cannot be ousted at the threshold on the ground that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances 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 respect of a particular group of 104 cases. The same (in MA Nos. 03 to 07/Jab/2020) have since been disposed of, allowing the Revenues MAs, i.e., in principle. The principal reasons for the same are the non-allowance of proper opportunity of hearing, including for raising objection/s, if any, to the Revenue while hearing its appeals in the first instance, as well as not taking cognizance of the material on record, i.e., of the fact of the appeals being excepted, as communicated per the authorization memo u/s. 253(2). The relevant part of the Tribunal s order, which is equally applicable in the facts of the present case, is as under: 3. We have heard the parties; perused the material on record, and given our careful consideration to the matter. 3.1 At the outset, we note that the instant proceedings being u/s. 254(2), bar deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, like-wise, 628 appeals, reproduced at para 5 (pages 9 to 15) of the impugned order, itself, vide para 1 thereof, notes that individual notices to the parties were dispensed with in light of the discussions with the Principal Chief Commissioner of Income Tax (Gujarat) and the representatives of the ITAT Bar Association. The arguments raised before the Tribunal in the said appeals, as a reading of the same would clarify, were on the legal aspects of the matter, viz. the applicability of the circular to pending appeals, etc., not touching the specific facts of any particular case. It is primarily for the said arguments, equally applicable in the instant case, that an extensive reference, reproducing it in toto , was made by the Tribunal thereto in the impugned order. I n the present case, speaking for all the 96 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard 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 Madhavlal Patel (supra) vide para 8 thereof while summarily dismissing 628 appeals, making it clear that either owing to wrong computation of tax effect or owing to such cases being covered by the permissible exceptions, or for any other reason, the Tribunal shall take remedial steps in this regard. Where, then, one may ask, is the scope for raising any objection by the Revenue, which forms the basis of the assessee s case, or at least the preliminary objection to the instant MAs ? Where, again, then, is the scope for taking a plea by the assessee that the Revenue having not raised an objection at the time of hearing of its appeal, is now precluded to seek its restoration? Why, even the Hon ble Courts do this, making a saving for any error/omission, i.e., while summarily dismissing an appeal/ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 authority has not filed any appeal or application for reference on any issue in the case of an assessee for any assessment year, it shall not preclude such authority from filing an appeal or application for reference on the same issue in the case of- ( a ) the same assessee for any other assessment year; or ( b ) any other assessee for the same or any other assessment year. (3) Notwithstanding that no appeal or application for reference has been filed by an income-tax authority pursuant to the orders or instructions or directions issued under sub-section (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the income-tax authority has acquiesced in the decision on the disputed issue by not filing an appeal or application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 than the monetary limit specified, would itself have precluded the listing of such appeals in the first instance as these were, at least prima facie , excepted by the Board circular. No regard to the terms of the Board circular, apart from the tax-effect involved, was made by the Tribunal while listing the appeals, as the same would require perusing the record, or otherwise hearing the parties on the applicability or otherwise of the circular. It was for this reason as well that its order bore a caveat, saving appeals (COs) which may not be actually covered u/s. 268A for any reason, though may stand dismissed in limine . Not only the appeals, the corresponding COs by the assessees, being generally supportive in nature, were also protected inasmuch as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 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 having not been raised in the GoA, so that it becomes only a mode of bringing the basis for filing an appeal to the notice of the Tribunal, it becomes irrelevant whether the same is through GoA or AM, and thus, of no consequence. Rather, it would be incorrect to term it as an objection , the same being excluded under the circular itself, terms of which have to be complied with, so that the Revenue, on its appeal being listed, is obliged to state the reasons for having filed the appeal in the facts and circumstances of the cases, without obtaining clarity on which, it would not be possible for the appellate forum to decide on the maintainability or otherwise of the Revenue s appeal. It is, in fact, even otherwise, not open for any appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parture 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 the assessee bringing on record material, also relying on case law in the support of its case, itself emphasizes, if any was required, the need for hearing the parties before issuing any opinion, even as the same does not exclude mistake or omission, removal of which, therefore, the law provides. No Court or Tribunal can, by its action or non-action, cause prejudice to any party before it, is a settled legal proposition, i.e., acutus curiae neminem gravabit , reiterated time and again by the Apex Court, as in Honda Siel Power Products Ltd. vs. CIT [2007] 295 ITR 466 (SC). In our clear view, dismissal of the Revenue s appeals by the Tribunal, in view of the authorization memo dated 30.10.2018 on record, clearly stating of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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