SUGGESTION FOR FUNCTIONING OF TRIBUNAL- amendment of ITAT Rules about adjournment is desirable: ITAT - ADJOURNMENTS BY MEMBERD AND REGISTRY OFFICE (INSTEAD OF BENCH) CAN SAVE VALUABLE TIME OF HONORABLE BENCH, COUNSELS AND REDUCE TRAVEL AND CONEYANCE HENCE POLLUTION

[CA DEV KUMAR KOTHARI]

Relevant links and references:

Income-tax (Appellate Tribunal) Rules, 1963 Rule 4 , 4A, 23, 24, 25, 32.

Petition for adjournment - hearing by bench of ITAT:

As per Rule 32 of the INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963, petition for adjournment sought by appellant or respondent are heard and decided by the Tribunal. The Rule 32 reads as follows with highlights added by author for analysis and understanding:

Adjournment of appeal.

32. The Tribunal may, on such terms as it thinks fit, and at any stage, adjourn the hearing of the appeal.

Thus it is discretion of Tribunal to adjourn hearing or not.

At present general practice is that adjournment petitions are put before the ITAT bench and then honourable members consider the petition, in case of need discuss and hear party seeking adjournment , and opposite party if he has any reason to object, and then allow or disallow adjournment.

Not allowing adjournment may lead to ex parte hearing Rule 24 and 25:

If an adjournment is not allowed, this may lead to ex parte hearing in absence of party seeking adjournment, or it may lead to representation by such party when he is not fully prepared. This can lead to injustice.

An amendment is desirable:

As discussed later on, an amendment in Rules is desirable to provide for decision of petition for adjournment when a petition is made before the date of hearing and the reasons for seeking adjournment are reasonable and justifiable. An amendment, authorising members and administrative officers to consider and adjourn hearing will go a long way in saving valuable time of bench and will help in more disposal of appeals.

Purpose seeking approach for adjournment:

On a purpose seeking approach, and on reading of Rule 32, in view of author this Rule is strictly applicable when an appeal is ready for hearing by the on the date of hearing. And at the time even after hearing appeal to some extent, the bench may adjourn hearing to some other day or time with some directions to  Authorised Representative of assessee / Counsel of assessee (A/R)  and Departmental Representatives D/R.

 Therefore, adjournments sought well in advance can be considered by members of ITAT who is looking after administrative and chamber work. In fact even other authorised administrative officers should be allowed to consider and decide adjournment petitions filed well in time, so that cases adjourned in such manner can be taken out of cause list for any day of hearing.

Consideration by bench on date of hearing:

At present as per Rule 32, consideration by Bench , of petition for adjournment is also necessary and as per practice, adjournment petitions are decided by Bench. When a petition is filed, it is also insisted that  Authorised Representative of petitioner should attend bench.

It is observed that many adjournment petitions are filed well in advance and many are filed on day of hearing. Usually the Bench consider them just after sitting. Roughly about 30 +/- 10 minutes are spent on hearing and disposal of adjournment petitions by the Bench.

Consideration of petition by Bench will be necessary when petition is made on the day of hearing itself. This situation should be avoided by parties so that valuable time of honourable members is saved. However, at present it is insisted that the counsel or other authorised representative of party seeking adjournment should be present at the time and day scheduled for hearing. This is reason that many times Authorised Representative (A/R) assessee as well as the Departmental Representatives (D/R) submit adjournment petition just before the time fixed for hearing. This causes other party also to be present at the time of hearing. 

Petition well in time:

It is preferable and advisable that petition for adjournment of hearing should be filed well in advance with a copy to opposite party. And decision on such petition should also be taken and conveyed to parties well in advance.

When petition is made well in advance, this function can be performed by administrative staff of ITAT in a very reasonable and efficient manner. In this regard an amendment of Rule 4A is desirable to authorise Registrar, Deputy Registrar, Assistant Registrar or The Bench Officer to consider , decide and convey the parties about adjournment and new date of hearing in advance so that lot of time of all concerned – Members of ITAT, D/R of revenue and A/R of assessee is saved.

Petitions for adjournment of hearing fixed before ITAT:

Many times it becomes necessary for appellant or respondent to seek adjournment of date of hearing fixed before ITAT. Some of reasons are:

a. Notice is received late so time available to make arrangement for hearing, file paper book is not sufficient so that opposite party can be served with submissions, paper book well in time , required for preparation by opposite party to respond to written submission, paper book etc.

b. Related appeals are not fixed together. As per Rules relatedappeals by way of cross appeal, appeal by way of cross objection, appeals of other years involving similar issue in case of assessee are not fixed together. In such circumstances adjournment is sought with request to club and fix related appeals together.

c. Certain circumstances like assessee, related persons, counsel would be out of station on the date of hearing.

d. More time required for consultation with counsels, preparation of submissions, paper book etc.

e. Sickness of party to appeal /assessee orcounsels of party.

f. Very exceptional circumstances when adjournment is needed due to very recent happening and reasons on the day of hearing or few days before it.

In many of above situations petition for adjournment are filed well in advance, still the same are heard and considered by the Bench on the date of hearing. If administrative officers are authorised to consider and decide adjournment petitions well in time and before date of hearing, there will be saving of lot of valuable time of honourable members of ITAT, Departmental Representative of Revenue and Authorised Representatives of assessee.

Desirable amendments:

Rule 4 is about Power of Bench this reads as follows, with highlights added by author:

Powers of Bench.

4. (1) A Bench shall hear and determine such appeals and applica­tions made under the Act as the President may by general or special order direct.

[(2) Where there are two or more Benches of the Tribunal working at any headquarters, the President or, in his absence, the [Senior Vice-President/Vice-President of the concerned zone or, in his absence, the seniormost member of the station present at the headquarters] may transfer an appeal or an application from any one of such Benches to any other.]

In this Rule there is no provision for consideration of application for adjournment otherwise then by Bench. The Rule can be amended to provide for authority to members, to consider and decide applications for adjournment made before date of hearing. In fact, to save valuable time of members,  administrative authorities can also be authorised to consider and decide adjournment applications.

Rule 4A is about Powers and functions of the Registrar. On reading of the same any specific provision for taking a decision on adjournment petition is not found. The Registrar/Deputy Registrar/Assistant Registrar have been authorised to receive applications for adjournment.

It is desirable that these authorities be authorised to consider and decide application for adjournment. In this regard guidelines may also be provided in the Rules or by way of Circular. As discussed above, in many situations, administrative authorities can be authorised to take and convey decision on application for adjournment and convey the same to parties and reduce cases adjourned from cause list.

Likely benefits if amendment is made:

If amendment about adjournment is made this will result into many benefits like:

a. Will save lot of valuable time of Benches.

b. The cause list will be more accurate about cased ready for hearing and likely to be heard, because cases suitable for adjournment will be reduced from cause list.

c. Will save lot of time of D/R.

d. Will save lot of time of A/R.

e. Time saved by members, D/R and A/R will avoid wastage of valuable human resources.

f. Public money willbe used more purposefully.

g. Usage of vehicles will also reduce to some extent as many of A/R and D/R will not be required to go to the ITAT just for seeking adjournments. This will reduce pollution.