Mr. J. E. Coelho Pereira, Senior Advoca With Mr v. Oral Judgment

IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 42 OF 2015 M/s. Alcon Developers,a registred Partnership firmregistered under no. 42/95 with theregistrar of firms represented in this act by its PartnerMr. Nanda Sadassiva Naique Counto,major of age, Indian National,residing at 503, Gurudatta Complex,Panaji, Goa.…AppellantV e r s u sAssistant Commissioner of Income Tax,Circle-1(1), Aykar Bhavan,Patto Plaza, Panaji, Goa.…Respondent Mr. J. E. Coelho Pereira, Senior Advoca with Mr. V. Korgaonkar, Advocate for theAppellant. Ms. Asha Desai, Advocate for the Respondent. Coram :-F. M. REIS, K. L. WADANE, JJ.thDate : 28 July, 2015 ORAL JUDGMENT (Per F. M. Reis, J.) Heard Shri J. E. Coelho Pereira, learned Senior Advocate appearingfor the Appellant and Ms. Asha Desai, learned Counsel appearing for theRespondent. 2.Mr. J. E. Coelho, learned Senior Advocate appearing for the Appellant, upon instructions, states that he will withdraw the application dated 10.03.2015 filedbefore the Income Tax Appellate Tribunal to recall the impugned Order within one week from today. Based on the said statement of the learned Shri J. E. CoelhoPereira, learned Senior Advocate, which is accepted, the above Appeal was heardon merits. 3.Admit, on the following substantial question of law : (1) Whether the impugned Order passed by the IncomeTax Appellate Tribunal stands vitiated for not complying withthe principles of natural justice ?Tax Appellate Tribunal stands vitiated for not complying withthe principles of natural justice ? 4.Upon hearing the learned Counsel appearing for the Appellant and theRespondents and without going in to the merits of the rival contentions raised in theproceedings before the Authorities, below the only aspect we have examined in thepresent Appeal is whether the impugned Order passed by the Income Tax AppellateTribunal dated 23.01.2015 stands vitiated for breach of the principles of naturaljustice. 5.Shri J. E. Coelho Pereira, learned Senior Advocate appearing for theAppellant, has brought to our notice that the matter was posted for arguments on12.01.2015 when the concerned Counsel appearing on behalf of the Appellant wasunable to be present on account of some matters which were posted before theKarnataka High Court. Learned Senior Advocate further pointed out that theconcerned Counsel had in fact faxed a letter dated 09.01.2015 directly to theTribunal, inter alia, disclosing his inability to remain present for the reasons statedtherein and seeking an adjournment in the matter fixed on 12.01.2015. LearnedSenior Counsel further pointed out that the Tribunal without examining the saidletter has taken a view that the Appellant has failed to remain present and, as such, proceeded to decide the Appeal on merits. Learned Senior Advocate furtherpointed out that the Appellants have a good case on merits and as no appropriatehearing was given to the Appellants, grave injustice has occasioned to theAppellants by considering the Appeal filed by the Respondent in the absence of theAppellants. Learned Senior Advocate has also brought to out notice that writtensubmissions were in fact filed before the Tribunal which have not been consideredby the Tribunal while disposing of the above Appeal. Learned Senior Advocate onthis count alone submits that the impugned Order be quashed and set aside andthe Appeal be directed to be decided afresh after hearing the parties in accordancewith law. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for theAppellants, has relied upon the Judgment passed on 19.02.2013 in Writ Petitionno. 293 of 2007 in the case of Mrs. Celina Almeida vs. Minister of UrbanDevelopment & Ors., in support of his submission that oral submissions are to beadvanced as in case oral arguments are not heard it would lead to the breach ofthe principles of natural justice. 6.Ms. Asha Desai, learned Counsel appearing for the Respondent haspointed out that the Tribunal has rightly examined the merits of the dispute and hascome to the conclusion that the Respondents were entitled to the reliefs sought inan Appeal before the Tribunal. Learned Counsel further pointed out that theAppellants were given opportunities to advance their submissions and in fact evenon earlier occasions, the Appellants were accommodated by the Tribunal bygranting an adjournment. Learned Counsel further pointed out that even on therelevant day i.e. 12.01.2015, nobody on behalf of the Appellants was present topoint out the said letter sent by the concerned Counsel referred to by the learnedSenior Advocate appearing for the Appellants. Learned Counsel further pointed out that the Tribunal has rightly exercised discretion in refusing to grant any further timeto the Appellants and, as such, on account of such gross negligence on the part ofthe Appellants to avail of their right of hearing before the Tribunal, no relief can begranted to he Appellants. Learned Counsel as such submits that the substantialquestion of law is to be answered in favour of the Respondent and the Appeal berejected. 7.We have given our thoughtful considerations to the rival contentionsand have also gone through the records. We make it clear that we have not goneinto the merits of the rival contentions with regard to their respective claims onmerits before the learned Tribunal. The only aspect we have examined at thisstage is whether the impugned Order passed by the learned Tribunal standsvitiated for not complying with the principles of natural justice. This Court in theJudgment in the case of Mrs. Celina Almeida vs. Minister of UrbanDevelopment & Ors., (supra), relying upon the Judgment of the Apex Court hasobserved at para 8 thus : “8. …... It is now well settled by the judgments ofthe Apex Court reported in 2011(2) SCC 258 in thecase ofAutomotive Tyre ManufacturersAssociation V/s Designated Authority & others and2009(14) SCC 690 in the case of Prakash RatanSinha V/s State of Bihar & others, that in cases inwhich the consequences of the disposal of the disputeby the authority constituted in the Act would result inthe civil consequences, a party is entitled for anadequate hearing. The Apex Court has even givenobservation that the written submission is not a substitute to oral submissions as in the course of theoral submissions a party has an opportunity to seekfor clarification or clear any doubt in the disposal of thedispute. Taking note of the said observation of theApex Court as laid down in the said judgments, I findthat Shri J. E. Coelho Pereira, learned Senior Counselappearing for the petitioner is justified to contend thatthe impugned judgment passed by the respondentno.1 stands vitiated for breach of the principle ofnatural justice in not giving an adequate opportunity tothe petitioner of hearing the appeal preferred by therespondent no.3. … ” 8.Taking note of the said observations, the importance of giving anopportunity to the parties to advance oral arguments have been duly accepted. 9.In the present case, it is not disputed that the Appellants were notgiven an opportunity to advance oral arguments before the Tribunal. The letterdated 08.01.2015 has also not been examined nor placed before the Tribunal whilstpassing the impugned Order dated 23.01.2015. Not giving an adequate hearing tothe Appellants would itself vitiate the impugned Order for breach of the principles ofnatural justice. In the present case, we find that even the contentions raised in thewritten submissions filed by the Appellants have also not been duly noted norconsidered by the Tribunal whilst passing the impugned Order. 8.Taking note of the said observations, the importance of giving anopportunity to the parties to advance oral arguments have been duly accepted. 9.In the present case, it is not disputed that the Appellants were notgiven an opportunity to advance oral arguments before the Tribunal. The letterdated 08.01.2015 has also not been examined nor placed before the Tribunal whilstpassing the impugned Order dated 23.01.2015. Not giving an adequate hearing tothe Appellants would itself vitiate the impugned Order for breach of the principles ofnatural justice. In the present case, we find that even the contentions raised in thewritten submissions filed by the Appellants have also not been duly noted norconsidered by the Tribunal whilst passing the impugned Order. 10.As such, wthout going into the merits of the rival contentions, we findit appropriate to quash and set aside the Order passed by the learned Tribunal anddirect the Tribunal to decide afresh the Appeal preferred by the Respondents inaccordance with law. No doubt, there is some lack of due diligence on the part of the Appellants in not being present on the date fixed for hearing i.e. 12.01.2015 andbringing to the notice of the learned Tribunal the letter sent by the concernedAdvocate. In such circumstances, we find that the Appellants would be entitled forfurther hearing in the Appeal subject to the Appellants paying costs quantified atRs.15,000/- to the Respondents. The substantial question of law is answeredaccordingly. 11.In view of the above, we pass the following : O R D E R (i)The impugned Order dated 23.01.2015 passedby the Income Tax Appellate Tribunal, Panaji, isquashed and set aside. (ii)Income Tax Appeal no. 377/PNJ/2013 isrestored to the file of the Income Tax AppellateTribunal, Panaji. (iii) The Tribunal shall proceed to decide theAppeal afresh after hearing the parties in accordancewith law. (iv)Cost of Rs.15,000/- to be paid to theRespondent as condition precedent which by consentto be deposited before the CIT. (v)Appeal stands disposed of accordingly. K. L. WADANE, J. F. M. REIS, J.