YOGESH KANSAL AND COMPANY

Section 255 of the Income-tax Act, 1961 - Procedure of Appellate Tribunal - Practice Note for hearing appeals & Applications fixed before ITAT nagpur e-bench

CIRCULAR [NO. F.1-AD (E-BENCH)/AT/2012], DATED 9-11-2012

In exercise of powers vested in the Income Tax Appellate Tribunal under sub-section (5) of section 255 of the Income Tax Act, 1961, it is directed that appeals and applications fixed before the Income Tax Appellate Tribunal, Nagpur Bench will be heard through Video Conferencing by the Members of the ITAT sitting at ITAT, Mumbai. The President, ITAT will nominate from time to time the Members hearing the cases through Video Conferencing system. This system of hearing through Video Conferencing will be referred to as 'e-Bench'. For the purposes of e-Bench, detailed Regulations alongwith Do's, Don'ts and Forms for use under these Regulations are framed and issued herewith for compliance by all concerned. Appellants, Respondents, authorized representatives, Departmental Representatives and all others concerned are hereby informed accordingly.

REGULATIONS REGARDING HEARING OF APPEALS BY VIDEO CONFERENCE:

There shall be no change in the present procedure of filing, scrutiny, hearing and disposal of appeals except modifications stipulated below:

A. NOTIFYING HEARING OF APPEAL BY VIDEO CONFERENCING:

1. The President may, by notification issued from time to time, direct that appeals pending before any Bench of the Tribunal shall be heard in addition to hearing in open court and at the option of the parties to an appeal or appeals, through Video Conferencing, by members of the same Bench or members of other Benches, sitting in any other place/Bench/Benches of the Tribunal.

2. For the purpose of E-courts, the Original Bench (OB) shall be the bench where the appeal is filed or the bench where such appeal is to be heard in ordinary course. Similarly the bench in which the appeal is fixed for hearing through video conferencing shall be referred to as E-Bench (EB).

3. Necessary infrastructure shall be created and maintained at OB as well as at EB so as to carry out the proceedings for hearing appeals through video conferencing.

B. PROCEDURE PRIOR TO HEARING OF APPEAL BY VIDEO CONFERENCING:

1. In the notice of hearing, the place of hearing will be mentioned which will be the place of the Office of the OB or such other place within the same city. The notice of hearing shall also specify the place of EB.

2. Along with notice of hearing, a note duly signed by the Assistant Registrar will be enclosed, in which it will be clearly mentioned that hearing will take place at OB/EB through video-conferencing. The same shall be as per Annexure-A annexed hereto. In case the Assessee or the Department does not want the case to be heard through Video Conferencing, he/they may intimate the registry within a week. The form of such intimation may be as per Annexure-B.

3. The cases other than in which the Annexure-B is received from either of the parties will be considered for hearing by the EB. These cases will be marked as EB and will be kept separately.

4. Thereafter, original files in duplicate shall be sent by the office of OB to the office of the EB. Prior to sending the original files, the OB shall create a duplicate copy of the file to be kept ready for the use at the time of hearing by the office of OB, for making office notings/directions etc.

5. One hour before the scheduled time of hearing on a given day, the bench clerks will be present in the EB and OB along with the files fixed for hearing for that day and ensure that electronic screen etc. are functioning well before the scheduled time of hearing.

6. Paper Book meant for the members of the E-Bench are to be filed at the place of OB as per existing Rules. However, it is advisable to file the same well in advance to ensure that they are available at EB on the date of hearing.

7. Existing rules do not provide for filing of any loose paper/document at the time of hearing which will be strictly followed in case of EB hearing. In case parties are relying on any un-reported judgments, a copy of the same has to be given to the bench clerk at OB who will immediately after hearing forward the same to the members of the EB.

C. PROCEDURE AT THE HEARING OF APPEAL BY E-BENCH:

1. The same practice as is being followed by the Bench in hearing appeals in open court will be followed when the appeal is heard through Video Conferencing, as there is no difference in procedures except that the Bench and Bar are at different places connected electronically.

2. Without prejudice to the generality of what is stated above, the following procedure shall be adopted when the hearing of appeals takes place through Video Conferencing.

3. Bench Clerks sitting at EB and OB will make the entries in the order sheet simultaneously. In case of discrepancy in recording the order sheet at EB and OB, the entry in order sheet maintained at EB shall prevail as it will be signed by the Members. At the conclusion of hearings for the day both bench clerks will match the entries of the order sheets and discrepancy if any shall be rectified according to the order sheet of EB and parties may be informed accordingly.

4. As per the existing Rules, additional evidence if any, to be filed by the parties has to be in the form of separate paper book which will have to be strictly followed as no loose documents can be accepted at the time of hearing, except with the permission of the members of Bench subject to no objection by the other party.

5. In the concluded cases, if EB wants any clarification from either party then the same will be listed for rehearing before EB and will be heard in the like manner as adopted in regular course except such hearing will take place through video conference.

6. If the EB thinks fit to examine any witness necessary for deciding appeal before it, the same shall be done by Video Conferencing and the procedure for hearing appeal shall mutatis mutandis apply to recording of such evidence.

7.The fact regarding conclusion of hearing will be duly recorded in the file both at the OB as well as at EB, by the concerned Bench Officers of both the Benches.

8. The Registry will ensure that the order once it is signed by both the Members is put on the Net on the same date which will serve the purpose of pronouncement in Open Court as order will become accessible to public.

9. The pronouncement of the orders by the EB will be done by Video Conferencing and such pronouncement shall be done in the same manner as the hearing of appeals by the EB.

10. The same procedure will apply to miscellaneous applications and stay applications also.

11. Within the frame work of the procedure referred to above, the EB will be at liberty to adopt its own procedure depending upon the circumstances prevailing at the time of hearing of such appeal. The EB shall ensure that such procedure affords reasonable opportunity of being heard to the parties.

D. MISCELLANEOUS REGULATIONS

1. Since proceedings before EB are not being recorded nobody will be entitled to ask for replay/copy of the proceedings. However, certified copies of record can be issued to the parties on their application as per existing rules.

2. The records and record of the proceedings before the EB shall be maintained in the same manner and for the same period as the records are being maintained by the Tribunal of appeals which are heard in open court.

3. Certified copy of the order passed by the EB shall be issued to the parties by the OB in the same manner as orders of Benches are issued when appeals are heard in open court.

4. The President by notification issued from time to time, nominate members of the EB from and out of the existing members of the Tribunal. Such nomination shall be in accordance with the provisions of the Income Tax Act, 1961.

5. If any party who earlier has submitted Annexure-A, later on wants to get its appeal decided through E-court then he can submit fresh request as per Annexure-C and after obtaining no objection from other party the appeal will be listed for hearing before E-court.

ANNEXURE - A

Draft note to be signed by Assistant Registrar and to be enclosed with notice of hearing.

It may please be noted that hearing of the appeal/application will take place at e-Bench located at

:………………………………………………………………………………………………………..

through video conferencing. In case the assessee does not want the case to be heard through e-Bench he may intimate the registry within a week from receipt of this notice. In case no option is received, the hearing shall take place as notified above.

Assistant Registrar

ANNEXURE - B

Form for not opting for hearing of appeal through Video Conferencing.

From : The Assessee or A.R of the Assessee/DR

To : The Assistant Registrar of the concerned Bench.

Sir,

Ref: ITA No………………………..

……………………….vs……………………….

With reference to the above, I do not wish that the hearing of the above appeal should take place through Video Conferencing.

Yours faithfully

ANNEXURE - C

Income-tax Appellate Tribunal, Mumbai

The Assistant Registrar,

Income Tax Appellate Tribunal,

________________

Sub : Withdrawal of Annexure B & option for hearing through E-court.

Ref: ITA No .________ ......Vs .........

I/ We had submitted Annexure B opting out for hearing before E-court vide letter dated____________. Now I/We withdraw Annexure B & give my/our option for hearing of captioned appeal through E-Court. Permission may granted and needful be done.

Thanking you,

Yours faithfully

Copy to:

1. Respondent/Appellant with a request to give their consent or objection as the case may be within a week of receipt of this letter.

ANNEXURE -D

Memorandum of E-Hearing at Original Bench

Original bench at ___________________

E-Bench at ___________________

Date on which files sent to E-Bench ___________________

Dates of adjournments sought by assessee or revenue with signature of the AR on the fresh date granted ___________________

Documents sent by e-mail to e-bench with date and time ___________________

Date on which case is finally heard ___________________

Stamp of hearing with Name of AR and DR ___________________

Date on which order finally pronounced at EB___________________

Date on which file received back from E-Bench with the requisite number of copies of orders. ___________________

Declaration by the BC at OB that all the documents including POA etc. have been received back in original from the EB.

ANNEXURE - E

Memorandum of E-Hearing at E-bench

Original bench at ___________________

E-Bench at ___________________

Date on which file received from Original Bench _______________

Date on which P.B received from Original Bench ______________

Dates of adjournments sought by assessee or revenue ____________

Documents received by e-mail from original bench with date and time ___________________

Date on which case is finally heard ___________________

Stamp of hearing with Name of AR and DR ___________________

Date on which order finally pronounced ___________________

Date on which the order is uploaded ___________________

Date on which file sent back to Original bench with the requisite number of copies of orders ___________________

Declaration by the BC at EB that all the documents including POA etc. have been sent back in original to the OB.

ANNEXURE - F

Order Pronounced by EB at _______________ on ____________ BY

Persons Present at OB at _______________on _______________

For Assessee: ___________________

For Department ___________________

DO's

1. File your appeals normally at the Office of ITAT in your place as prescribed in the Rules.

2. When a notice of hearing comes with communication of hearing by E-Bench, reply immediately in case E-hearing was not acceptable.

3. File paper book, copies of orders etc., at least 15 days before the scheduled day of hearing.

4. Please note that there is no change in the rules, procedures or protocol in E-hearing.

5. Present at the place of Original Bench only.

6. While arguing the case, look at the screen, i.e., at the Members of the E-Bench.

7. Speak clearly. Make your submissions normally as if you are in the Court Room.

8. Maintain decorum and silence in the Court Room.

Don'ts

1. Do not delay in sending Annexure-B in case you do not want E- hearing.

2. Do not delay filing paper book or other documents/orders till the last moment, including the Power of Attorney/Authorization.

3. Do not look at the Camera while arguing your case.

4. Do not shout, as the audio spoils the clarity in your speech.

5. Do not enter into/entertain cross talk in the Court Room.

6. Do not worry about camera angle. The technical aspects of presentation is taken care by Office.

7. Do not submit any documents at the time of hearing. If required, take leave of the Members and follow the instructions given.

8. Do not seek adjournments, unless absolutely necessary.

9. Do not appear at the place of E.B. No personal hearing shall take place at the place of E.B.

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