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TMI Blog2021 (5) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ERIM ORDER PER J. SUDHAKAR REDDY, AM: The ld. CIT(D/R) filed an application for adjournment of this case for a period of six months vide letter dated 08.05.2021. The ld. Counsel for the assessee Miss Nisha Rachh, FCA strongly objected to the adjournment of the case. She submitted that the appeal itself is not maintainable and hence should be dismissed as such. 2. After hearing both the parties, we deem it fit to note the sequence of events for ready reference. The Revenue has filed this appeal on 6th November, 2019. The case was posted for hearing on 21/01/2021. On 19/01/2021, the ld. CIT(D/R), moved an application for adjournment on the ground that, he is making a recommendation for appointing a special counsel to defend the case of the Revenue, as was done earlier in the first round of appellate proceedings before the ITAT. He sought an adjournment to an appropriate date. The case was adjourned to 9th February, 2021. On 25/01/2021, the ld. Counsel for the assessee moved an application for final hearing and disposal of the appeal on 09/02/2021 on priority basis on the ground that the respondent is an aged man of 77 years having health issues and is under tremendous s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue took a stand that the case should be adjourned for a period of three (3) months, on the same ground that the appointment of a special counsel, Mr. Girish Dave, is in progress. The ld. Counsel for the assessee objected and submitted that the request should not be granted. The age and health of the assessee and pandemic were once again cited as reasons for seeking early disposal. The matter was adjourned to 13.04.2021 on assurance from the ld. CIT(D/R) that the objections of the assessee are taken note of by the Department and the matter of appointment of Special Counsel would be expedited. 2.5. On 09/04/2021, the assessee filed objections on the maintainability of the Revenue s appeal. He filed detailed submissions pointing out the defects in Form No. 36 filed by the Department as well as the maintainability of the grounds of appeal. On 13/04/2021, the virtual hearing of the case was adjourned due to poor connectivity to 15.04.2021. On 15.04.2021 the Revenue sought yet another adjournment on the same ground that Mr. Girish Dave is being appointed as a Special Counsel. The case was adjourned to 03.05.2021 and the ld. CIT(D/R) was asked to submit the reply of the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.s. 55(2)(a). Thus, the Departmental Representative conceded that receipt in question cannot be taxed u/s 56(2) or 56(2)(vii). [Please also refer to Page 54 of CIT(A)-2, Kolkata s Appellate Order No. 10147/CIT(A)-2/18-19 dated 01/08/2019] and thus he has challenged the Grounds of Appeal itself. The matter may kindly be got examined at your end and a reply in this regard is required to be furnished before the ITAT A Bench, Kolkata on or before 10.05.2021 which has been fixed as the next date of hearing, as directed by the Bench. A copy of the same should also be sent to CIT(D/R) for arguing the case further. 3. Today on 10.05.2021 the ld. CIT(D/R) requested for six months adjournment of this matter vide letter bearing no. F. No. CIT (AU)-2/Kol./Admin-I/2020-21 letter dated 08.05.2021, filed with the Bench on 10.05.2021. Relevant portions of this letter are extracted for ready reference. 5. However the Bench directed to revise grounds of appeal on that day and when it was requested that matter may be adjournment for a period of minimum three days, it was said that try to do it by 10/05/2021 and in case it is not done by 10/05/2021, then the hearing will be further a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Girish Dave is suddenly changed for reasons known to the AO for more than 30 months. She strongly objected to the letter of the Revenue seeking adjournment and submitted that this is the second round of appeal proceedings of this case before the Tribunal and that all the papers and arguments on the legal issues including the maintainability of the appeal, are on record and that the Bench can dispose off this appeal in accordance with law. She pointed out that CIT(D/Rs) are regularly appearing virtually before different Benches of the ITAT in other cases, and have been arguing the matters. She pleaded that the appeal of the Sr. Citizen should be considered specifically due to the pandemic situation. She submitted that under no circumstances six months time should be granted to the Revenue. She prayed that the case be disposed off on the preliminary issue of maintainability of the appeal, in accordance with law. 4. After considering all the papers on record and submissions of both sides, 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth 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. The officers are required to discharge the duties entrusted to them and are not expected to shift responsibilities, on one pretext or another. We Members of the ITAT are regularly attending offices and disposing off cases through virtual court with the help and assistance of the ld. Sr. D/Rs, CIT(D/R)s as well as the members of the Bar. 4.2. 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities are accountable for their actions. 5. Hence, we order as follows:- 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 . d) The AO who is the appellant in this case is directed to file his written reply to the letter of the ld. CIT(D/R) addressed to the Pr. CIT-2, Kolkata being F. No. CIT (AU)- 2/Kol./Admin-I/2020-21/II letter dated 03.05.2021 by 20.05.2021 with a copy to the assessee. It is the duty of the AO to demonstrate that this appeal is maintainable. e) The ld. CIT(D/R) is directed to make his submission on behalf of the department on the maintainability of this appeal of the Revenue on 24.05.2021. f) The Assistant Registrar, ITAT, Kolkata is directed to serve a copy of this order on both parties. Kolkata, the 11th of May, 2021. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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