2021 (5) TMI 502 - AT - Income Tax

Adjournment sought - request for adjournment made by the Revenue - assessee moved an application for final hearing and disposal of the appeal on priority basis on the ground that the respondent is an aged man of 77 years having health issues and is under tremendous strain due to the prevailing pandemic situation - HELD THAT - We find that both the parties are citing the pandemic as the reason for either, early disposal of the matter or for seeking indefinite postponement of the adjudication of the matter. In our view, the Revenue's present request is highly unreasonable and unwarranted. From seeking adjournment for a period of thirty days to further period of three weeks and thereafter coming with a request for a further period of three months' adjournment, today a request is made by the Department for an adjournment for a further period of six (6) months. On the earlier dates of hearing, the adjournments were sought on the ground that a special counsel Mr. Girish Dave is being appointed as he had represented the Revenue before the ITAT on the very same matter during the first round of appellate proceedings in the month of August, 2018. It was submitted by the ld. CIT(D/R) that Mr. Girish Dave has given consent on 31.03.2021 to represent this matter. Today, suddenly, the Revenue seeks time to engage another Special Counsel, in the place of Mr. Girish Dave, who has already given his consent, on the ground that the Assessing Officer did not find the performance of Mr. Dave, to be satisfactory on the earlier occasions i.e., in August, 2018. This sudden change of mind of the AO is not explained. The performance of Mr. Girish Dave was known to the Department in August, 2018 itself. We wonder as to why it took so long for the AO to come out with this opinion that the performance done thirty months back is not satisfactory. Why it was not satisfactory, is not stated. The order of the ITAT dated 16.11.2018 has not been challenged before the Hon ble High Court and so it has attained finality. The entire narrative of the Department is being changed when the Bench has directed the Department to reply on the issue of maintainability of this appeal. The AO is the appellant and he is bound to reply to the Bench of the ITAT on the issue of defects in the appeal From no. 36 and to the issue of maintainability of the grounds of appeal. He is duty bound to file reply addressing the maintainability of the appeal and cannot dodge the issue at this stage and make excuses. Revenue is also raising strong objections, without any valid ground, for the hearing of the appeal by the Bench on the preliminary issues of maintainability of the appeal. These objections are hereby rejected. This Bench has been highly accommodative and has granted a number of adjournments to the Department till date despite strong and valid objections of the assessee who is a sr. Citizen with health issues and who is requesting resolution of all his disputes at an early date due to the pandemic. Government offices and Senior Officers above the rank of Deputy Secretary to the Govt. of India, are duty bound to attend office and discharge their duties during this pandemic. The cases before the ITAT are being represented by the Officers of the rank of Additional Commissioner of Income Tax as well as Commissioner of Income Tax on a regular basis all through this pandemic. Even complicated Transfer Pricing and international tax matters have been heard and disposed off during this pandemic period. No officer tried to avoid arguing the cases and have been coming fully prepared. Pandemic, health, stress and advanced age can be a relevant factor for the assessee who is a senior citizen to seek early settlement of disputes. This request, in our view, is perfectly justified and every citizen has a right to seek such early disposal. Central Government officers, during the pandemic are expected to perform their duties in accordance to law. Order - a) The request for adjournment made by the Revenue is granted for the last time. However, the request of the Revenue for six months stay/adjournment is rejected. b) The appeal is posted for final hearing on the preliminary objection raised in respect of maintainability of the appeal on 24/05/2021. No further adjournment shall be granted in this appeal to either parties. c) The appeal is directed to be de-listed from the category part heard .

Summary

Issues Involved:
1. Adjournment requests by the Revenue.
2. Maintainability of the appeal filed by the Revenue.
3. Compliance with procedural requirements and deadlines.

Issue-wise Detailed Analysis:

1. Adjournment Requests by the Revenue:
The Revenue filed multiple applications for adjournment, citing the need to appoint a special counsel, Mr. Girish Dave, who had previously represented the Revenue in the first round of appellate proceedings. Despite objections from the assessee, who is a 77-year-old individual with health issues exacerbated by the pandemic, the Tribunal granted several adjournments. However, the Tribunal noted the unreasonable and unwarranted nature of the Revenue's requests, which escalated from a 30-day adjournment to a six-month adjournment. The Tribunal found the sudden change of mind by the Assessing Officer (AO) regarding Mr. Dave's performance, which was known since August 2018, to be unexplained and unjustified.

2. Maintainability of the Appeal Filed by the Revenue:
The assessee raised objections regarding the maintainability of the Revenue's appeal, citing defects in Form No. 36 and the non-maintainability of the grounds of appeal. The Tribunal directed the AO to address these issues and provide a written reply. The Tribunal emphasized the duty of the AO to demonstrate the appeal's maintainability and rejected the Revenue's objections to hearing the appeal on preliminary issues. The Tribunal noted that the Revenue had not challenged the ITAT's order dated 16.11.2018, which had attained finality, and criticized the Revenue for changing its narrative when directed to reply on the maintainability issue.

3. Compliance with Procedural Requirements and Deadlines:
The Tribunal highlighted the duty of government officers to attend office and discharge their duties during the pandemic, noting that other officers have been regularly representing cases before the ITAT. The Tribunal stressed the importance of timely decisions in income-tax proceedings, as mandated by the Taxpayers' Charter. The Tribunal granted the Revenue's adjournment request for the last time but rejected the six-month stay request. The Tribunal scheduled the final hearing on the maintainability issue for 24.05.2021 and directed the AO to file a written reply by 20.05.2021.

Conclusion:
The Tribunal balanced the need for early disposal of the case, given the assessee's age and health, with the procedural requirements of the Revenue. The Tribunal granted a final adjournment but emphasized the need for the Revenue to address the maintainability issues promptly. The Tribunal's decision underscores the importance of adhering to procedural rules and the duty of government officers to perform their responsibilities, even during challenging times like the pandemic.