Gauhati High Court
Dy. Cit vs Lohit Co-Operative General Stores Ltd. on 29 August, 2001
Equivalent citations: (2004)86TTJ(GAU)827
ORDER
N.S. Saini, A.M.:
This is an appeal filed by the department. After the filing of the appeal the registry office of this Tribunal noticed certain defects in the memorandum of appeal filed. The defects were made known by the registry office vide letter dated 14-9-1998.
2. The defects pointed out in the memorandum of appeal were that two copies of grounds of appeal before the first appellate authority and two copies of statement of facts, if any, filed before the said appellate authority are not accompanied along with memorandum of appeal. Moreover, the appeal is prima facie time-barred by 9 days. Hence, the appellant was called upon to showcause as to why the appeal should not be dismissed as time-barred. In compliance with the aforesaid defects, the Income Tax Officer, Ward-1, Dibrugarh, vide his. letter dated 23-9-1998 has replied as under
"1. Regarding submission of grounds of appeal before the first appellate authority and the statements of facts, I beg to submit that as the first appeal was preferred by the assessee before the Commissioner (Appeals), such particulars are not available with the assessing officer. However, the grounds are noted by the Commissioner (Appeals) in his orderagainst which appeal is now preferred
2. As regards the delay of 9 days in filing of the appeal, the appellant (viz., the Dy. CIT (Assessment), Special Range, Dibrugarh) submitted a condonation petition on 16-8-1998, along with the memorandum of appeal in form No. 36, a copy of which is enclosed herewith for your kind perusal.
In view of the above, I would most humbly pray the Hon'ble Tribunal to con one t e e ay an admit the appeal."
3. After considering the above reply and also the defect memo issued by the registry office we have to state that the Tribunal is a quasi-judicial body. If it would have been a court then the C.P.C. or Cr.P.C. would have been applicable to it. But being a quasi-judicial body it has framed its own rules, namely, the Income-tax (Appellate Tribunal) Rules, 1963. Rule 9 of the said Rules prescribes the documents to be accompanied with the memorandum of appeal filed. Rule 9(1) of the said Rules states that every memorandum of appeal shall be in triplicate and shall be accompanied by two copies (atleast one of which shall be a certified copy) of the order appealed against, two copies of the order of the Income Tax Officer, two copies of the grounds of appeal before the first appellate authority and two copies of the statement of facts, if any, filed before the said appellate authority. So, it is mandatory for any appeal filed before the Tribunal to be accompanied with the documents prescribed in r. 9(1).
4. Rule 9(3) of the Income-tax (Appellate Tribunal) Rules, 1963, states that the Tribunal may in its discretion accept a memorandum of appeal which is not accompanied by all or any of the documents referred to in sub. r (1). The assessing officer did not file any application before the Tribunal to accept the appeal without any of the documents as prescribed under r. 9(1) which has not been filed.
5. After considering the facts of the case and the reasons cited above, we dismiss the appeal filed by the department.
6. In the result, the appeal filed by the department is dismissed for not filing the documents mandatorily required under r. 9(1) of the Income-tax (Appellate Tribunal) Rules, 1963.
N.R.S. Gaivesan, J.M.
7. I have the benefit of going through the proposed order drafted by the learned Brother, the AM I entirely agree with the conclusion arrived at by the learned AM However, I like to add my own reasoning to the above said conclusion.
8. Admittedly, the registry of this Bench of the Tribunal has served a defect notice dated 14-9-1998. The reason for not complying with the aforesaid defect notice was that the copies of the grounds of appeal and the statement of facts were not available with the assessing officer. The aforesaid reason was disclosed in the letter written by the assessing officer to the registry of this Bench of the Tribunal. During the course of hearing the learned departmental Representative, Shri S. Bhattacharjee, submitted that the copies of the grounds of appeal and the statement off acts filed by the assessees before the first appellate authority was not served on the assessing officer. The other ground was that as far as the department is concerned, the present appeal before the Tribunal is only a first appeal and hence the rules contained in the IT (Appellate Tribunal) Rules i.e., r. 9 is not mandatory as far as the department is concerned. Now, I have to see whether the grounds of appeal and the statement of facts filed by the assessee before the first appellate authority were actually served on the assessing officer or not. I have before me only the oral submission made by the learned departmental Representative about the non-service of the grounds of appeal and statement of facts. No material document has been placed before me to take a decision on that aspect. However, section 251: of the Income Tax Act, 196 1, categorically says that the Commissioner (Appeals) shall give notice of hearing to the appellant and to the assessing officer against whose order the appeal is preferred. The giving notice is not an empty formality., It otherwise means an opportunity of being heard, So, unless and until the grounds of appeal and statement of facts filed by the assessee were not served upon the assessing officer, the Commissioner (Appeals) cannot give an effective hearing to the assessing officer. So, the intention of the legislature was very clear that the grounds of appeal as well as the statement of facts are required to be served to the assessing officer for giving an effective opportunity of hearing to support the assessment order. If the statement of facts or the grounds of appeal were not served upon the assessing officer there will be not only a clear violation of principles of natural justice but also violation of statutory principles contained in section 251 of the Act. In that case it is open to the assessing officer to file an appeal before this Tribunal against the order of the Commissioner (Appeals) under section 253 of the Act.
9. I have perused the grounds of appeal filed by the assessing officer before this Tribunal. No ground was taken in respect of non-service of grounds of appeal and the statement of facts and the denial of the opportunity of hearing by the first appellate authority. Since the assessing officer has not taken any ground, the general presumption is that the first appellate authority has complied with all the statutory requirements including the service of the grounds of appeal and the statement of facts. In view of the above, I am unable to agree with the learned departmental Representative that the grounds of appeal and the statement of facts were not served on the assessing officer. The very fact that no ground was raised in this appeal and no , grievance was brought to the notice of the Tribunal in challenging the impugned order of the Commissioner (Appeals) regarding the violation~ of principles of natural justice or section 251 of the Act in not serving the grounds of appeal or statement of facts this Tribunal. cannot presume that the aforesaid documents were not served upon the assessing officer. Accordingly, we reject the argument of the learned departmental Representative on that account.
10. The other ground is regarding whether the proceedings before the Tribunal under section 253 of the Act is a first appeal or second appeal. Admittedly, the order of the Commissioner (Appeals) wag passed under section 250 of the Act on the basis of the appeal filed by the assessee under section 249 of the Act. So, the aforesaid order of the Commissioner (Appeals) is subject to another appeal before the Tribunal under section 253(1)(a) of the Act. Even though the assessee has filed the appeal under section 249 read with section 250 of the Act before the Commissioner (Appeals), the assessing officer is also added as a party respondent in the aforesaid appeal. So, it is well known fact that the assessing officer is a party to the proceedings before the Commissioner (Appeals) under section 249 read with section 250 of the Act. It makes very clear that the proceedings before the Commissioner (Appeals) is first appeal and the appeal filed against the order of the Commissioner (Appeals) before the Tribunal either by the assessee or by the department is only a second appeal and the rule framed by the Tribunal is necessarily to be complied with. Rule 9 of the Income-tax (Appellate Tribunal) Rules categorically says that the appellant, either the assessee or the department, has to file the grounds of appeal and the statement of facts which was filed before the Commissioner (Appeals). The aforesaid rule was incorporated with an intention to find out the actual subject-matter of dispute before the first appellate authority. Of course, a power has been given to the Tribunal to dispense with the production of any document under sub-r. (3) of r. 9. This can be invoked only when the Tribunal comes to the conclusion that the said document is not necessary for the disposal of the appeal before it. Admittedly, no petition has been filed to invoke the jurisdiction of the Tribunal to dispense with the production of the grounds of appeal and the statement of facts. Moreover, I am of the considered view that the grounds of appeal and statement of facts are very essential to know the actual subject-matter of appeal before the first appellate authority which is essential for the disposal of the present proceeding before the Tribunal. In view of the above facts, I reject the second contention of the learned departmental Representative. Rule 9 is mandatory both for the department and assessee who files appeal before Tribunal.
14. In view of the above reasoning, the appeal is treated as unadmitted for noncompliance of the defect notice issued by the registry of the Tribunal and accordingly the same is rejected.