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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’: NEW DELHI
Date of Hearing 18.10.2021 Date of Pronouncement 11.01.2022 Hearing conducted via Webex ORDER The present appeal has been filed by the assessee, wherein the correctness of the order dated 31.07.2019 of CIT(Appeals), Ghaziabad pertaining to 2012-13 assessment year is assailed on various grounds on merits including ground no. 1 which reads as under: -
“That the Ld. CIT(A), Ghaziabad erred in law on facts and in surrounding circumstances in dismissing the first appeal of the hapless appellant vide her order dated 31.07.2019 passed in a routine, arbitrary and whimsical manner having no sustainability in law.”
At the time of hearing, no one was present on behalf of the assessee.
A perusal of the record shows that on each of the dates the appeal came up for hearing the assessee has remained unrepresented before the Tribunal. It is seen that the notice sent by the Registry at the address mentioned in the memo of appeals has also come back un-served with the following comments:
Accordingly considering the material available on record and hearing the Ld. Sr. DR it was deemed appropriate to proceed with the present appeal ex- parte qua the assessee appellant on merits. It also appropriate to bring on record the fact that till the date of passing of this order, there is no communication on record on behalf of the assessee either addressing the shortcomings, if any in the particulars of the address of the assessee or any effort to ascertain the fate of the appeal filed.
The ld. DR relies on the orders.
In the interests of substantial justice it is deemed appropriate to set aside the order. However, before proceeding to address the specific reason for the same, I deem it appropriate to first address the specific words used in the aforementioned ground. The specific words used are oft repeated words whose meaning is clearly understood by the legal fraternity. The specific words which arouse my concern are the allegation that the order under challenge is alleged to have been passed in routine, arbitrary and whimsical manner having no sustainability in law. On going through the record in the specific case I find that none of the above allegations are correct.
In the facts of the present case, it is seen that the Ld. Commissioner exercising the powers granted under Section 250 of the Income Tax Act in order to ensure that the aggrieved party is heard granted adjournments on all applications moved by/on behalf of the assessee repeatedly. On the first date of hearing, an adjournment application was moved on behalf of the assessee.
As a result thereof the appeal was adjourned and fixed for hearing on 12.06.2019.
6.1 On the said date also an adjournment application was moved and the appeal of the assessee was adjourned to 27.06.2019.
6.2 On the said date again an adjournment application was moved on behalf of the assessee. The First Appellate Authority yet again adjourned the appeal to 17.07.2019.
6.3 However, on the said date the assessee remained unrepresented. It is seen that the order was passed on 31.07.2019. Thus, it appears that apparently from the date 17.07.2019 till the date of passing of the order no adjournment application was moved by the assessee.
6.4 In the circumstances, the Ld. CIT(A) proceeded to decide the appeal on the basis of material available on record.
The above factual background available on the face of the record itself goes against the above allegations raised which appear to be completely carelessly.
A perusal of the record shows that as per the grounds raised before the First Appellate Authority there was an allegation that the assessment was made at the last moment and opportunity of being heard was not granted to the assessee. It is seen that the Ld. Commissioner considering the assessment record was of the view that the grievance posed by the said ground was not borne out from facts as several opportunities for granting a hearing had been given by the Assessing Officer over a period of time. The ld. Commissioner considering this fact juxta posed with the various opportunities provided in the Appellate proceedings by her to the assessee was convinced on facts that the assessee having not availed of these opportunities had nothing further to state.
Hence the addition made in the assessment order which anyway was pursuant to a remand by the ITAT consequently stood confirmed. The said order is under challenge in the present proceedings.
The assessee herein also, it is noticed, has remained unrepresented. In the above facts and circumstances, I am of the view that the usage of the words in the ground no. 1 casting aspersions on the First Appellate Authority incorrectly and irresponsibly is to be strongly deprecated.
Curiously, the self Certification of the assessee as “hapless appellant” is not borne out on record. The assessee having benefited by the adjournments granted in the facts of the case cannot become hapless merely because in the absence of any contrary fact or evidence, the addition stood confirmed. These baseless allegations and self certification is completely misfounded on facts and record. There is nothing on record to show how and why the order of the First Appellate Authority is routine, arbitrary and whimsical. The casual use of the words having adverse legal consequences for the functioning of the adjudicating Authority like the First Appellate Authority is strongly deprecated. The record shows that the assessee has been treated fairly. The assessee has been the beneficiary of few adjournments granted by the Ld. Commissioner and despite this has not chosen to be present on the last day of hearing and has not even cared to offer any explanation before the ITAT either by way of mention in the grounds or in the prayer as to why on the said date the assessee remained unrepresented. The self certification is arrogantly ignorant and meaningless. In the absence of any effective representation by the assessee the Ld. Commissioner had no option whatsoever except to pass the order as passed.
Caution needs to be voiced on the above critical observations which are case specific and are not to be so construed that an Order cannot be alleged to be arbitrary before a Higher Forum. Such an allegation can very well be made if the Authority passes an order ignoring facts, evidences or in violation of procedures etc.
In the facts of the present case, the Ld. Commissioner has granted reasonable time and thereafter on the basis of material available on record has passed the impugned order. Even though this order is being set aside in the present proceedings, however, it is not being set aside because it is an order passed in routine or is whimsical or arbitrary. It is being set aside only and solely on the grounds that the tax payer should not suffer on account of either his ignorances or inability due to some extenuating circumstances on account of which fact he could not come clean with all his facts and explanations qua the issues before the tax authorities.
11.1 There is no doubt whatsoever that the tax payer while approaching judicial remedies is to come with clean hands. It is not the right of the tax payer to ignore, obfuscate or be careless in availing of the statutory remedies made available to him for this purpose. It is expected that the statutory remedies of appeal etc. before the First Appellate Authority are availed of with proper compliances, good faith and clean hands.
11.2 The justice system is live and comes down heavily on any arbitrary or whimsical exercise of power. Conscious of these responsibilities whenever in any case it is noticed by the ITAT that the representation of the taxpayer has been wanting at the First Appellate stage then in the interests of substantial justice, the impugned order which may appear to be correct on the basis of available facts may be set aside in view of fresh facts being brought on record and/or wherever it is noticed that the assessee's representation may have suffered due to ignorances or oversight or absence of some material documents or some such similar shortcoming at assessee's end. It goes without saying that the State is interested only in collecting the just and due taxes and hence collections based on account of the ignorances or bad representation on the part of the tax payers are not supportive to this principle. The orders flouting this principle are open and amenable to corrections.
11.3 However, it can never be over emphasized that justice delivery system should be approached fairly, in good faith and with clean hands.
Leveling irresponsible, unsustainable allegations on the First Appellate Authority cannot be accepted and is strongly deprecated. The remedies available under law are to be availed of in good faith.
11.4. Making rash, careless, erroneous allegations against the tax authorities in the grounds raised should be strongly discouraged and on this aspect the role of the tax advisors/consultants who draft, submit or vet the appeals filed before the ITAT comes into prominence. Due respect to the Administrative Tax Authorities does not diminishing either the status or the dignity of a taxpayer.
11.5 It cannot be over emphasized that Courts/Tribunals are always live to their roles and responsibilities and ready to take notice of the genuine grievances of the parties and wherever it can be showed that injustice has been meeted out. It needs be emphasized that even a soft polite whisper of injustice rings like a loud clarion call in the ears of the Courts and the Tribunals who function only to ensure that justice is always not only done but also seen to be done. In such cases the Courts/Tribunals which exist only for pursuit of justice as its own end do step in and render complete justice as in the present case enabling an aggrieved party to place all correct facts before the adjudicating authority. A taxpayer who has himself been careless, irresponsible cannot be permitted to level baseless allegations alleging abuse of power and sheltering himself behind self certification of being a hapless victim. The Courts/Tribunals’ power of rendering justice should be invoked with due responsibilities acknowledging personal inactions addressing the correct facts. Whenever it can be demonstrated that an order has resulted which but for the deficiency of proper representation would never have resulted even if it appears to be in accordance with law solely because the assessee could not for reasons best known to itself avail of the statutory remedy available by ensuring full and correct facts the prayers on facts are addressed. The Courts/Tribunals considering the bonafide prayer would always step up in the interests of substantial justice.
In the facts of the present case much to my regret after deliberating over the issues, I have deemed it necessary to comment on the choice of words used by the litigant in order to avail the Appellate Forum provided by the statute. Conscious of the fact that each and every assessee may not be personally conversant and capable of comprehending the exact meaning of the words used as English may not be the first language of the assessee, the fact remains that the appeals filed before the ITAT are largely and generally vetted/finalized by the tax consultants or advisors who are presumed to be conversant with the meanings of the words used generally before the Courts or the Tribunals. Thus, again as a word of caution and utmost humbleness at my command, I advise that the use of circumspect language can never be over emphasized and to my understanding should be ideally adhered to. The incorrect belief, if any, that rash, bombastic loud allegations against the First Appellate Authority in the grounds raised would create an atmosphere of sympathetic hearing should be strongly deprecated and dispelled.
A perusal of the record shows that the additions made by the Assessing Officer which were challenged before the CIT(Appeals) were sustained in view of the fact that the assessee initially seeking adjournment on the dates the appeal was fixed for hearing ultimately failed to appear on 17.07.2019 the date on which the appeal was finally adjourned to. Considering the fact that the basic grievance of the assessee towards the additions made by the AO subsists and lack of opportunity was agitated the impugned order is set aside. The facts of the case are not being set out as the issues are still to be thrashed out. It is duly noticed that the issue was before the AO by virtue of a remand by the ITAT and the assessee cannot afford to be seen as abusing the trust of the Court. Thus, without saying anything further, the matter is set aside. It is noticed that before the ITAT in the present proceedings the assessee has provided the following email address for communication of notices etc. : parasharadv1987@gmail.com. The said address may also be taken note of.
Accordingly, the impugned order is set aside back to the file of CIT(Appeals) with a direction to pass a speaking order in accordance with law after giving assessee a reasonable opportunity of being heard. While restoring it is made clear that opportunity so provided in good faith in the interests of substantial justice, it is hoped is not abused by the assessee an effective and proper participation is made before the CIT(A) is made.
Said order was pronounced in the open court at the time of hearing itself.
In the result, the appeal of assessee is allowed for statistical purposes.
Order pronounced in the open court on 11th Jan.,2022.