ITAT- Adjournment of hearing - notice through cause list is not proper – proper communication of date of hearing and reasonable opportunity of hearing are precondition to render justice.

[CA DEV KUMAR KOTHARI]

Logo of ITAT is as follows:

From the logo of ITAT we find indication of moto of ITAT as Easy & Speedy Justice.

From: https://www.itat.gov.in/page/content/about-tribunal

ITAT draws inspiration from its motto ‘Nishpaksh Sulabh Satvar Nyay’, which means impartial, easy and speedy justice. ITAT stands out for its uniqueness of imparting justice to the litigants, by an inexpensive, easily accessible forum free from technicalities,

Satisfactory performance:

We experience that by and large ITAT is performing well and it can be said that in its working moto of ITAT as observed from its website is fulfilled to a satisfactory level. However, still there is lot of scope to really make process of rendering justice inexpensive and easily accessible from technicalities. Some issues are discussed below.

Hearing:

Many times we find that very short notices are issued for date of hearing and assesse and his authorised representative and Departmental Representative (D/R) get inadequate time. For this reason, assesse or D/R has to seek adjournment. Sometimes adjournment is also allowed for very short period and again assesse or D/R need to apply for adjournment.

Some members prefer to allow very short time and it becomes difficult to prepare case satisfactorily and in filing of paper books. Reasonable time should be allowed particularly because now-a-days it is more important to gather up-to date information from various websites to represent case.

Notice for date of hearing and new date of hearing in case of adjournment:

Firstly a notice of filing of appeal is served on respondent along with copy of appeal memo and grounds of appeal preferred by the appellant.  Generally this notice is also accompanied with notice or information about date of hearing. In case date is not fixed, then date is notified later on before the case if fixed for hearing.

In case of adjournment of hearing by Tribunal, a notice for revised or new date of hearing is issued. In this notice date of last hearing (L / F) is also indicated. Earlier, different forms were used for date of first hearing  and  date of subsequent hearing or date of hearing on  adjournment. Sometimes we received notices in which particular item was ticked and other item was strike out.  

Adjournment when Representative is present:

When a representative of assesse or D/R is present in Court Room and new date is announced, conveying date by announcement is good enough, provided that the assesse or his A/R or D/R take note of the same and there is clear communication and it is signed by the A/R or D/R.  To avoid any confusion or communication mistake, it is better to get signed order sheet in which next date is fixed by the A/R or D/R.

However, when assesse or his A/R and D/R is not present, it is desirable that the date of next hearing should be communicated properly in writing.  

 Adjournment of hearing by Tribunal:

Many times hearing is adjourned by Tribunal for reasons like:

(a) The bench is not functioning on date of hearing fixed.

(b) Declaration of holiday on the date or hearing fixed.

(c) Bench was supposed to function but for some reasons bench is unable to function.

(d) Shortage of time.

Proper communication of new date of hearing is very much essential.

In such circumstances representative of assesse may not be available at the time of hearing. If  D/R has permanent postings and there is office of CIT (D/R ITAT) then D/R is likely to be present in Court Room and he can note date of next hearing. However, in case of assesse it will not be possible if he or his A/R is not present.

Communication of next date through notice board:

Earlier we used to receive notice of adjournment and new date of hearing. However during last few years practice of mentioning date of hearing in case of adjournment in cause list has been adopted or sometimes it is mentioned in the notice of constitution of benches.

For example, we find some communications about adjourned dates in the constitution cum cause list for Friday, 11.01.2019 for Kolkata Bench. In this cause list we find some cases are adjourned and next date is mentioned in the notice on notice board. For example, communication reads as follows:

        Note:  following cases, which are fixed for hearing on 11.01.2019 stands adjourned to 18/01/2019. No further notice shall be issued:

                           …. (list of cases is given)

        Note:  following cases, which are fixed for hearing on 11.01.2019 stands adjourned to 01/02/2019. No further notice shall be issued:

“B” Bench of ITAT, Kolkata was cancelled during 07.01.2019 to 10.01.2019. We find that the different dates of next hearing are mentioned in the cause list by mentioning Adjourned to  date …

Two pictures about fixing date of next hearing through notice board/ e-notice board are also appended in this article for example.

Communication through notice board is not proper:

As discussed earlier the A/R , or D/R  may not be available in the court Room this can be due to reason that notice of hearing itself was not served.

 Furthermore, notice on the notice board in physical form and also on the website is available for few days only. Many times, on notice board we find overlapping of newer notices over older notices, therefore it becomes difficult  to read older notices.

Therefore, it may not be possible for appellant or respondent to easily ascertain date of next hearing.

Formal notice for adjourned hearing should be given.

To make sulabh and saral nyay, it is very much essential that notice should be given in clear terms and in proper and easy to communicate and understand manner.

Dismissal of appeals:

In very popular case of Multiplan India Ltd, in a  departmental appeal D/R was not present. A/R of assesse/ respondent was also not present, in that situation honourable Tribunal dismissed the appeal as not prosecuted or appellant presumed to be not interested etc.

 The judgment is being followed by benches and many times appeals are dismissed, if appellant in not present. In some cases communication of date of hearing was not made, therefore, the order dismissing appeal was called back and appeal was restored on an application called Miscellaneous Application (MA)  by the Appellant and showing reasonable cause for not appearing on date of hearing.

With due respect, author feel that such approach adopted by Tribunal is not as per law. Tribunal has most of relevant documents with appeal memo, and appeal can be decided on merits after considering the same.  In many such appeals issues are covered by judgments of Courts and Tribunals. Therefore, in interest of justice many of appeals can be decided on merit.

Fortunately many members have adopted practice of considering material available and they decide appeal on merits, even if the appellant is not present. That is commendable.

In case appellant is not present, proper course is either to decide appeal based on material available that is appeal records  in case it is prima facie , considered that relief cannot be allowed to the appellant and justice is not possible without hearing, proper course is to adjourn hearing and allow further opportunity of hearing.

 

Discussions to this article

[Prashant Maharishi]

suppose if the issue is decided on merits by the itat in absence of parties, is itat not liable to recall it?

if the matter is recalled, if the earlier if issue is decided on merits ex parte , the ITAT will be uninfluenced by the earlier ex parte decision, application of multi plan is not in favour of the assessee?

Though several high courst have held that application of multipal is bad , but unless there is a change in ITAT rules, it owuld be difficult