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TMI Blog2022 (6) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1961, for the assessment year 2010-11. 2. When this appeal was called out for hearing, learned counsel for the assessee invited our attention to a fundamental issue, with respect to the denial of opportunity to the assessee to present the case through video conferencing, raised in the first ground of appeal of the assessee. It was also pointed out that in the event of the assessee succeeding on this point, all other issues raised in the cross-appeals will be rendered infructuous. We are thus urged to take a call on this foundational issue first. Learned Departmental Representative does not oppose this prayer. With the consent of the parties, therefore, we take up this ground of appeal first. The related grievance raised by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, through video conferencing, and then decide the matter afresh. 4. Learned Commissioner (DR) submits that under the Faceless Appeals Scheme 2020, the granting of opportunity through video conferencing was not mandatory, and it was at the sole discretion of the authority concerned to grant or not to grant the video conferencing hearing. He vehemently supports the stand of the NFAC. He, however, graciously leaves the matter to the bench. 5. We find that, in terms of rule 12(2) of the National Faceless Appeals Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public authority has the corresponding duty to exercise these powers when circumstances so justify or warrant. As observed by a coordinate bench of this Tribunal, in the case of Sabnis Ashok Anant v. Asstt. CIT [(2009) 29 SOT 29 (Pune)], "All the powers of someone holding a public office are powers held in trust for the good of the public at large. There is, therefore, no 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions through the video conferencing- as was done by Hon"ble Madras High Court in the case of Ramco Cement (supra). However, in view of the subsequent development by way of a notification of the Faceless Appeals Scheme 2021, which has come into effect from 28th December 2021 in supersession of the Faceless Appeals Scheme 2020, even a specific call on the request for video conferencing hearing may is not really necessary. 9. Taking the sting out of criticism of the then faceless appeals procedures, and as a part of the ongoing and pragmatic reforms- which are now truly a hallmark of the contemporary tax policies anyway, the grant of personal hearing through video conferencing is now virtually on-demand. While rule 12(2) of the Faceless Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips 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 been very succinctly summed up by observing that "(i)f a legislation confers a bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the faceless appeal proceedings, is now available to every taxpayer, on-demand, the same must also be held to be admissible in the proceedings, if so demanded by the assessee, in the old rules as well. 10. In view of these discussions, as also bearing in mind the entirety of the case, we deem it fit and proper to remit the matter to the first appellate authority after giving an opportunity for a personal hearing, in terms of rule 12 of the Faceless Appeals Rules 2021, for adjudication de novo in accordance with the law and by way of a speaking order. Ordered, accordingly. As the matter stands restored to the file of the first appellate authority for adjudication all other issues raised in the cross-appeals are rendered academic and infru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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