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TMI Blog2024 (11) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... nue in the year 2011, however, it is to be noticed that the said order of the ITAT was interfered by the High Court at Calcutta and the matter was again remanded to the ITAT for deciding afresh the appeal filed by the Revenue after providing opportunity of hearing to the assessee and the ITAT has remanded the matter to the Assessing Officer to decide the issue afresh. In such circumstances, the whole premise of issuance of charge-sheet against the respondent has vanished. Though the Department was aware about the alleged negligent act of the respondent since the beginning but has not taken any action against the respondent till passing of a fresh order by the ITAT, pursuant to the direction issued by the High Court at Calcutta. It is not the case of the petitioners that the Department was not aware about the said negligent act of the respondent, if any, and came to know about it only in the year 2017 when the memorandum of charges were issued against the respondent. As observed earlier, the gravity of charge against the respondent has been diluted when the ITAT has remanded the matter to the AO for deciding the issue afresh and in such circumstances, the delay in initiation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and affirmed the finding recorded by the Assessing Officer. 5. It appears that the ITAT had passed the order dated 21.07.2011 without providing opportunity of hearing to the assessee and therefore, the assessee approached the High Court at Calcutta challenging the order passed by the ITAT and High Court at Calcutta vide order dated 31.07.2012 disposed of the said appeal preferred by the assessee whereby it kept in abeyance the order passed by the ITAT and directed the ITAT to take a fresh decision on the appeal filed by the Revenue before it against the order passed by the respondent. 6. The ITAT had passed the order dated 08.11.2016, as per the direction of the High Court at Calcutta while considering the submissions made on behalf of the assessee, remanded the matter to the Assessing Officer to decide the issue of disallowance of the sale commission and purchase commission to the assessee to the tune of Rs. 120,55,52,350/- afresh. 7. It appears that the assessee had not appeared before the Assessing Officer while he was deciding the issue afresh as per the direction of the ITAT and the Assessing Officer passed an ex-parte assessment order on 18.12.2017 against the assessee where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etirement. The said memorandum of charge was put to challenge by the respondent before the CAT and the CAT set aside the same vide order dated 22.05.2020 while relying a decision passed by CAT, Principal Bench in O.A. No. 201/2019 M.A. No. 3262/2019 dated 16.10.2019 (Anuradha Mookerjee Vs. Union of India Ors.) while observing as under: 11. In the present case, it is indeed evident that the applicant has not agreed to the assessment made by the Assessing Officer. There could have been many cases wherein the Appellate Authority may or may not agree with the assessment made by the Assessing Officer. To find a fault ordinarily with a particular decision either at the level of the Appellate Authority i.e. CIT (Appeal) or even at the level of ITAT, the function of which quasi judicial nature shall not be fair and would be against the scheme of things put in place. It is of course agreed that the functionaries in this system could not be immuned from the normal disciplinary proceedings for obvious and glaring misconduct, misbehaviour including lack of integrity in discharge of their functions. It has also come to the notice of the Tribunal that in similar case, adjudication has been done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Co-ordinate Bench of CAT, PB (supra), we found that the charge sheet initiated by the respondent authority vide their Memorandum dated 27.12.2017 is not maintainable and liable to be set aside. Accordingly, Memorandum No. C-14011/33/2017 dated 27.12.2017 is hereby set aside. 9. Assailing the order dated 22.05.2020 passed by CAT, Mr. S. C. Keyal, learned counsel for the petitioners has argued that the Tribunal has grossly erred in allowing the Original Application filed by the respondent without taking into consideration the fact that it is settled that disciplinary action could be initiated against an officer in respect of judicial or quasi judicial functions and the officer who exercises jurisdiction or quasi judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. Learned counsel for the petitioners has placed reliance on the decision of the Hon ble Supreme Court rendered in Union of India Ors. Vs. Duli Chand, reported in (2006) 5 SCC 680. 10. Per contra, Ms. D. Chaudhury, learned counsel appearing for the sole respondent has opposed the writ petition and has argued that the CAT has not committed any illegality in sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etary, Ministry of Defence Ors. Vs. Prabhash Chandra Mirdha, reported in (2012) 11 SCC 565 , the Hon ble Supreme Court has held that the proceedings are not liable to be quashed on the grounds that proceedings had been initiated at belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. 17. In the present case, the charge against the respondent is to the effect that he has deleted an addition of Rs.120.55 crore (approx.) while deciding an appeal in the hasty manner. Though the learned counsel for the petitioners has submitted that the said deletion was ultimately reversed by the ITAT in the appeal filed by the Revenue in the year 2011, however, it is to be noticed that the said order of the ITAT was interfered by the High Court at Calcutta and the matter was again remanded to the ITAT for deciding afresh the appeal filed by the Revenue after providing opportunity of hearing to the assessee and the ITAT, vide order dated 08.11.2016, has remanded the matter to the Assessing Officer to decide the issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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