The ITAT Will Have To Conduct A Mix Of Virtual Hearings And Physical Hearings

Dr. K. Shivaram, Senior Advocate, has pointed out that the stakeholders in the ITAT will have no option but to adapt to a mixture of virtual and physical hearings, in order to dispose off appeals and do justice. The ld. author has offered valuable suggestions on how the challenges can be overcome and the task achieved with least hardship to all concerned

Proposal before the Hon’ble Income Tax Appellate Tribunal to consider a combination of Virtual and Physical hearing abiding by the parameters laid down by the Government

Since March, 2020, the Hon’ble Appellate Tribunal, at Mumbai and at its other benches across the Nation have been constrained from conducting physical hearing. A reasonably good number of matters have been disposed by the Appellate Tribunal via virtual hearings. This has been made possible under the able leadership of the Hon’ble Justice Mr.P.P. Bhat, President of the Appellate Tribunal, ably assisted by the Hon’ble Vice Presidents, with the active involvement of the Hon’ble Members of the Appellate Tribunal. Tax Bars across the Country and the learned Departmental Representatives have been supportive and proactive regarding this process. Hyderabad, Visakhapatnam, Kolkata, Dehradun, Chandigarh, Mumbai etc. have all issued their respective Standard Operating Procedure for virtual hearings.

(Image Credit: TOI)

Although the number of COVID-19 cases has increased considerably; the Government has also been able to control the death and recovery rate. Citizens may not have any alternative other than abide by the guidelines prescribed by the Government from time to time. Central Board of Direct taxes has taken a very bold step to hear the matters pending before the Commissioner (Appeals) via a virtual hearing.This could pose a number of challenges at the beginning; however,the tax consultants will have to accept the fact that the virtual hearings will be the ‘new normal’.Honourable Justice Dr. D. Y. Chandrachud, Supreme Court of India in his webinar dated May 24, 2020 titled, “The Future of Virtual Courts and Access to Justice In India” has explained in detail the concept of virtual courts, highlighted the problems in the implementation of the concept, and proposed a possible solutions.

When a matter has to be argued before the Appellate Tribunal, matters may involve facts, law and even verifying the assessment records, in such a situation the virtual Hearing may not necessarily be the most effective method of hearing. There could be circumstances where the litigative issue at hand involves viz. covered appeals, simple issue, the case does not involve verification of case records,stay matters, early hearing applications etc. the same could be easily dealt via virtual hearing.

Accordingly, the Appellate Tribunal may have to consider two types of hearing one virtual hearing and another physical hearing before the regular Court by observing social distancing, guidelines as prescribed by the Government & the Appellate Tribunal, with further conditions as may be prescribed.  

An option may be given the assesses to either choose virtual haring or physical hearing.Some tax consultants are attending the offices and are ready to appear before the Appellate Tribunal fora physical hearing as and when required. To start with, only few matters may be fixed for physical hearing.Few Court rooms may be made functional, and upon observing the progress the number of hearings, may be suitably increased.

Few suggestions for consideration are:

1. Notice may be sent in at least one month in advance so that the assessee can be prepared in the matter.
2. The matters which are likely to come up for hearing may be published on the website of the www.itat.nic.in and a copy may be sent to the respective Bar Association of the Zone.
3. There has to be one designated Nodal officer in respective Zones through whom the assessees or departmental representatives can interact with regards to administrative issues, such as filing of paper book, filing of case laws, whether departmental representative will be ready with the matter or any case records are required etc.
4. Matters which are likely to consume more time, may be intimated, so that other matters are not be fixed or the board could be discharged.
5. In respect of the matters, where due to unavoidable circumstance the Counsel or the Departmental representatives is unable to attend, the matter may be adjourned as per the convince of both the parties.
6. In case of physical hearings, different time slots may be allotted as per the serial number,this will help to maintain the required distance.
7. Total pendency of appeal before Appellate Tribunal as on December 1, 2019was about 90,000 appeals of which 22,000 were from Delhi and 15,000 appeals from Mumbai. It may be worth considering whether to fix the matters for directions before the virtual Courts of the Appellate Tribunal. On verifying the grounds, if the same are covered matters, tax effect is less than Rs. 50 lakhs or small matters which does not involve lengthy arguments,a specific date may be given for hearing. The assessee or the Departmental Representatives may be requested to send by e mail a brief note of more than two pages along with case laws explaining the case at least seven days before the hearing and serve a copy to other side. If this method is adopted most of the covered and small matters can be disposed-off by virtual hearings.
8. Tax Benches of Bombay High Court in number of times adopted the system of keeping the matters for directions and after giving specific dates disposed large number of covered and where effects involved are less than the prescribed limit.This has helped to reduce the pendency of tax matters before the Hon’ble Bombay High Court.
9. For virtual or physical hearing, the Bench may be equipped with a computer system, which should have access to websites such as taxmann.com, taxlaws online, CCH tax online, SCConline etc. When an assessee or departmental representative refers a case laws they should be able to view the same at real time.
10. Assesses representative’s or departmental representatives may be advised to file a brief note at least 7 days in advance along with the case laws they are replying upon. 

As a long-term strategy, it is suggested that;

1. To approach a reputed IT Company for developing a state-of-the-art facility for filing of e-Appeals before the Tribunal and conducting the hearing. This will also help in accurately analyzing the pending appeals before the Tribunal at the time of filing itself.
2. The Appeal Forms may be suitably amended to facilitate e-filing.
3. The Tribunal Rules, may be suitable amended to as to facilitate e-hearings.
4. All pending appeals grounds of appeal may be analyzed and list may be prepared on the section wise and issue wise. This may help to quick disposal matters as soon as the delivery of judgement by Apex Court or Jurisdictional High Court
5. The Appellate Tribunal Rules may be amended so that the grounds of appeal may also mention the relevant sections and subjects.
6. As soon as the appeal is filed by the Department or the assesses, they may be requested to e-mail to grounds to designated e-mail account of respective Zones along with Name of assessee, Appeal No., Assessment Year. The Computer should able to segregate the appeal on the various parameters i.e. section wise, issue wise etc.    
7. The Entire computerization process can be done within a span oftwo months.
8. At present all the appeals before Commissioner(Appeals) are filed electronically and the submission are also made online. A system should be in place such that when appeals are heard before the Appellate Tribunal, the Hon’ble Members of the Appellate Tribunal should be able access the file of the Commissioner (Appeals) and Assessing Officer at the click of button.
9. All the information relating to the Appellate Tribunal must be made available on the website i.e. www.itatnic.in; such as  matters pending before the Special Benches, third-member cases, various circulars, notifications, relevant provisions of the Act, Appellate Tribunal Rules, Pendency of appeal  before the various Benches, minutes recorded etc., All orders of the Appellate Tribunal must be uploaded as soon as they are signed.
10. All souvenirs of the Appellate Tribunal such as 25 years celebration, 50 years celebration etc. may be hosted on the website, they contain scholarly articles and give insights about the history of Appellate Tribunal.

One may consider, the Hon’ble Members of the Appellate Tribunal who are well conversant with technology with the help of Bar Associations of the respective benches to organize a virtual Moot Appellate Tribunal to train the tax consultants. This will guide the tax consultants on how to present a matter before the Virtual Appellate Tribunal, what are the precautions to be taken, how to rely upon case laws, how to file brief note of the case and case laws relied on etc.This will encourage tax consultants to get accustomed with the technology. As and when the matters come up for hearing they would be prepared to argue before the Hon’ble Virtual Court.  There has to be constant study and innovation to bring virtual hearings at par with the physical hearing.

The Hon’ble Supreme Court has issued a SOP for resuming physical hearing for limited cases before it. The Hon’ble Vice President Chennai Zone has prepared the detailed guide lines for Physical hearing of matters of Chennai Zone with effect from September 14, 2020.The Tax Consultants may forward their objective suggestions, which can be considered by the Hon’ble President and Vice-Presidents for better functioning of the Appellate Tribunal Across the Country. 

The All India Federation of the Tax Practitioners(AIFTP) from time to time have made number of representations to the Central Government and also before the Apex Court to link all the High Courts with an E-Bench of the Supreme Court, to hear the matters pertaining to admission of Special Leave Petitions arising from respective High Courts. The Judges of the Apex court may hear the matters sitting at Delhi. With development of technology and innovation, this is possible. This will benefit the tax payers and country as a whole. The same were recommended to the Hon’ble Prime Minister, when he unveiled the ‘New India Vision & Road Map’ for the Country.

These are the few thoughts for consideration and the readers may send their constructive suggestions to the aiftpho@gmail.com for enabling the ITAT Bar Associations Co-ordination committee to take up the issues with the Hon’ble President and Vice-Presidents of the Appellate Tribunal of respective zones.