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JUSTICE DONE ON CAREFUL PERUSAL OF APPEAL DOCUMENT EVEN IN ABSENCE APPELLANT- KAPIL SHROFF- cases before tribunal and Courts can be decided based on written submissions and documents. |
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JUSTICE DONE ON CAREFUL PERUSAL OF APPEAL DOCUMENT EVEN IN ABSENCE APPELLANT- KAPIL SHROFF- cases before tribunal and Courts can be decided based on written submissions and documents. |
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Case discussed: 2019 (11) TMI 925 - ITAT KOLKATA -SHRI KAPIL SHROFF VERSUS INCOME TAX OFFICER WARD-5 (1) , KOLKATA. Brief facts: In this case The Ld. AO denied exemption and made addition as LTCG arising on sale of rural agricultural land. Though in the Return of Income the gain was described as agricultural income however, during assessment and in appeal proceedings it was clarified to be capital receipt being exempted LTCG on transfer of rural agricultural land. The ld. AO also invoked S.50C and made further addition for excess of valuation made by stamp authority over actual consideration. Another issue was treating a financial accommodation in nature of commercial transaction, received from a company by assesse as a working director and a shareholder having substantial interest in the said company. The assesse had provided securities and personal guarantees to banks for securing loans in favour of said company and as per MOU, company undertook to provide short-term mutual accommodation to assesse as a director of company. The Ld. AO did not accept claims of assesse and made additions which were confirmed by the ld. CIT(A). Therefore, assesse had preferred appeal before the Tribunal. Assessee had filed a paper book, and sought adjournment as some more documents were required for presentation of the case. Case was adjourned few times. At the last occasion, due to communication barriers, somehow assesse was not aware of date of final hearing fixed and accordingly on that day no one was present in the Court Room and case was called twice, and then heard ex parte the appellant. Careful consideration of the paper book by Tribunal: On reading of the order of Tribunal we find that honorable JM has very carefully considered the lengthy and voluminous paper book running into 216 pages, and discussed relevant pages of paper book and information provided therein for ascertaining facts. Besides Ld. JM has also considered some other judgments relevant to issues, though the same was not placed in paper book. After ascertaining facts and applying law, honorable Tribunal has deleted additions made by Ld. AO and confirmed by Ld. CIT(A). Justice done: This shows that honorable tribunal has done justice expeditiously. Instead of adjourning hearing, finding relevant material on record, Tribunal heard the respondent (AO) through the D.R. and considered paper book filed by assesse and decided the appeal and allowed relief admissible in view of facts and legal position. We find that in many cases appellate authorities and Tribunal also dismiss appeal if appellant is not present. In some cases, even paper books filed by appellant assesse were not considered and appeal was dismissed merely because appellant was not present at the time of hearing. This is contrary to law including ITAT Rules. As per law Tribunal is required to decide the appeal based on records. Dismissal of appeal for reason of absence of appellant is not as per law and result into injustice. In such cases many times, on application of appellant, and on showing sufficient cause for absence at the time of hearing, order dismissing the appeal may be recalled and then appeal is heard again. This results into delayed justice. For example, readers can refer to some decisions of ITAT in case of Quadra Medical Services P. Ltd. reported on this website. In those cases appeals of assesse were dismissed ignoring the paper book filed for the reason that appellant was not present hence it was assumed that appellant is into interested in prosecuting the appeal. However, on Miscellaneous Applications those orders of Tribunal on ITA were recalled, appeal was heard afresh and then the Ld. CIT(A) was directed to hear appeal on merits after allowing reasonable opportunity to appellant. By this way justice was delayed. Learning from the case of Kapil Shroff (supra): From this case we find that cases before tribunal and Courts can be decided based on written submissions and documents. Written submissions and documents are important because we find considerable time gap between date of hearing and writing and pronouncement of judgments. Furthermore, it is experienced that many of verbal arguments are not considered because at the time of hearing all points are not noted by Tribunal and Courts. Therefore, it is advisable to file either detailed written submissions or at least brief notes and page reference of paper book. Rules also need to be made specific , that appellant / respondent be required to file written submission and / or paper book for consideration of Tribunal / Courts and in that case personal appearance may not be required. In such cases, appeals can be decided based on written submissions and paper book. However, in view of ever changing legal position, the parties should also be permitted to file further submissions or updates on the issues in the case. The appellant and respondents can be given an option to rely on written submissions and waive requirement of personal representations. This will expedite delivery of justice. Furthermore, it will also increase scope of working from home by parties, their representatives, authorities and judges. Thus e-proceedings can be extended to Tribunals and Courts. In those cases, if required hearing can be conducted through tele-conference or video-conference etc. Paper book- index in case discussed above: As per draft prepared by author- some page numbers were filled later on): In this case the compilation of paper book was guided the author and assesse had finalized with page numbers filled in and filed paper book before Tribunal and forwarded copy of the same to the D.R. The index to paper book shows documents placed in it. Some important documents were highlighted by underlining or bold print etc. The same is as follows: ITA No. 743/ Kol. / 2017 fixed for hearing on 07.03.2019 Before Hon’ble “C” Bench Kapil Shroff Income Tax Officer, Ward 5(1), Kolkata (Appellant) (Respondent) Index to Paper Book Indicating lower authorities before whom documents were filed as required U/R. 18(3) of ITAT Rules :-
Copy of paper book is being filed before the learned Departmental Representative. As per my understanding any new evidence was not filed before CIT (A) and / is not enclosed in paper book before Tribunal. New documents are further analysis of documents considered by lower authorities and new circular and judgments. ** Assessment records were referred before the Ld. CIT (A). _______________ SHRI KAPIL SHROFF VERSUS INCOME TAX OFFICER WARD-5 (1) , KOLKATA.
By: CA DEV KUMAR KOTHARI - May 6, 2020
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