Tribunal “C” Bench, Kolkata (Tribunal) In I.t.a v. Prayer For Grant Of Adjournment But Proceeded

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/71/2017IA NO:GA/2/2017(OLD NO. GA/681/2017) IN THE MATTER OF :COMMISSIONER OF INCOME TAX, (LARGE TAXPAYERS UNITS)KOLKATAVS M/s. HINDUSTHAN COPPER LIMITED BEFORE : THE HON’BLE JUSTICE T.S.SIVAGNANAM A N DTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADATED : NOVEMBER 16, 2021. [Via Video Conference] Appearance :Ms. Sucharita Biswas, AdvocateMr. Asok Bhowmick, Advocate …for the appellantMr. J.P.Khaitan, Sr. AdvocateMr. S. Chunder, AdvocateMr. Jayanta Dutta, AdvocateMr. Biman Kr. Saha, Advocate …for respondent The Court :- This appeal by the revenue filed under Section260A of the Income Tax Act, 1961 (the Act in brevity) is directed againstthe order dated 3[rd] March, 2016 passed by the Income Tax Appellate Tribunal “C” Bench, Kolkata (Tribunal) in I.T.A. No. 1319/Kol/2017 forassessment year 2006-2007. The revenue has raised the followingsubstantial questions of law for consideration: (a)Whether on the facts and in the circumstances of the case theLearned Income Tax Appellate Tribunal, “C” Bench Kolkataerred in law in dismissed the appeal of the revenue expartewithout going into the merits of the case by relying upon thejudgement of Supreme Court in the Case of Office of thePostmaster vs. Living Media India Limited in Civil AppealNo.2474-2475 of 2012 (arising out of SLP(c) Nos. 7595-7596 of2011 dated February 24, 2012?Learned Income Tax Appellate Tribunal, “C” Bench Kolkataerred in law in dismissed the appeal of the revenue expartewithout going into the merits of the case by relying upon thejudgement of Supreme Court in the Case of Office of thePostmaster vs. Living Media India Limited in Civil AppealNo.2474-2475 of 2012 (arising out of SLP(c) Nos. 7595-7596 of2011 dated February 24, 2012? (b)Whether the impugned order is bad, arbitrary, illegal perverseand the same is nothing but a total non-application of mind ofthe Income Tax Appellate Tribunal, Kolkata and the same isliable to be set aside and/or quashed?and the same is nothing but a total non-application of mind ofthe Income Tax Appellate Tribunal, Kolkata and the same isliable to be set aside and/or quashed? The revenue was an appellant before the Tribunal challenging theorder passed by the Commissioner of Income Tax (Appeals)–VI(Kol)CIT(A)dated 11[th] December, 2012. It appears that there was no representationon behalf of the appellant/revenue before the Tribunal and the matterwas proceeded ex parte. However, the Tribunal noted that Revenue hasfiled a petition for an adjournment vide petition dated 2[nd] March, 2016.The prayer for adjournment was opposed by the assessee on the groundthat the appeal was of the year 2013. The Tribunal did not accede to the The revenue was an appellant before the Tribunal challenging theorder passed by the Commissioner of Income Tax (Appeals)–VI(Kol)CIT(A)dated 11[th] December, 2012. It appears that there was no representationon behalf of the appellant/revenue before the Tribunal and the matterwas proceeded ex parte. However, the Tribunal noted that Revenue hasfiled a petition for an adjournment vide petition dated 2[nd] March, 2016.The prayer for adjournment was opposed by the assessee on the groundthat the appeal was of the year 2013. The Tribunal did not accede to the prayer for grant of adjournment but proceeded to consider the matterand it took note of the fact that there was a delay of 63 days in filing theappeal. The reasons set out by the Revenue seeking condonation ofdelay was perused and the Tribunal opined that the reasons are not bonafide and referred to the decision of the Hon’ble Supreme Court in thecase of (OFFICE OF THE POST MASTER vs. LIVING MEDIA INDIA LIMITED)in 348 ITR P.7 and dismissed the appeal. Aggrieved by the same theRevenue is before us by way of this appeal. It may be true that the delayin filing the appeal before the Tribunal was not explained to thesatisfaction of the Tribunal. Nevertheless, when the Revenue sought foradjournment not only in the subject appeal but in seven other appeals,the Tribunal could have given short accommodation by adjourning thematter by a week or so, so that the Revenue will have an opportunity toput forth the contentions on merits. The Revenue does not benefit bylodging an appeal belatedly and more particularly when the appeal isdelayed only by 63 days. Normally Court exercise discretion and condonethe delay since disposal of the matter on merits will meet the ends ofjustice rather than throwing out a matter on a technicality. At the sametime, we observe that the Revenue should have been more vigilant inpursing the matter before the Tribunal especially when the appeal is ofthe year 2013 and the matter came up for disposal before the Tribunalafter three years in the year 2016. Be that as it may, we are of the viewthat a decision on merits will not only meet the ends of justice but also would be beneficial to the interest of the assessee. Therefore, we are ofthe view that the appeal filed by the Tribunal is required to be decided onmerits. In the result, the appeal is allowed and the order passed by theTribunal is set aside and the delay in filing the appeal before Tribunal iscondoned and the Registry of the Tribunal is directed to take the appealand decide the same on merits and in accordance with law. We make itclear that Revenue should co-operate with the disposal of the appealbefore the Tribunal and shall not seek for any adjournment.Consequently, the substantial questions of law are left open. Accordingly, the appeal stands disposed of so also the connectedapplications. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) GH.