Filing of appeals and Seeking of adjournments

Seek adjournment is a functionality provided to an assessee to submit a request to extend the response due date of hearing if the assessee is unable to submit response within the timelines mentioned. Generally, the adjournments are sought to collate data, produce records, prepare submissions or on account of ill health of the assessee or its representative or the inability for the counsel or representative to attend on account of travel or other litigation matters posted on the same date.

Power of CIT(A) to adjourn the hearing [Section 250(3)]

The power to adjourn is the absolute prerogative of the CIT(A) who may adjourn the matter on the facts the CIT(A) who may adjourn the matter on the facts and circumstances of the and circumstances of the case.

Text of Section 250(3)

The  Commissioner (Appeals)] shall have the power to adjourn the hearing of the appeal from time to time.

Adjournment under the faceless regime

Under the faceless regime, the Income-tax Department will provide specific timelines to taxpayers to furnish details and submissions, and they will have a limited window to seek adjournment. Consequently, it is essential for taxpayers to be assessment-ready and have clarity on their facts to support the legal positions they have taken.

Adjournment before ITAT [Rule 32]

Rule 32 of Income-tax (Appellate Tribunal) Rules, 1963 states that ITAT can grant adjournments

v  Application for adjournment should mention the reasons therefor (reasons can be, if facts state so):

v  Recent Engagement as Counsel

v  Time required in preparation of paper book for want of necessary documents from previous counsel etc. (should be genuine reasons and not delay tactics)

v  Application should be made at the earliest possible time before date of hearing

 

ITAT Order dated 20.05.2021 for Filing Appeals and Seeking Adjournment kept in abeyance

O R D E R dated 16.05.2015
Order dated 14.05.2015 with respect to pagination and order dated 20.05.2015 with respect to adjournments are held in abeyance till further orders.

Sd/-

[Justice (Retd.) Dev Darshan Sud]
President,

ITAT Order dated 20.05.2015

All applications for adjournment shall be filed atleast three weeks in advance, except in exceptional cases for which reasons for filing them beyond that period shall be clearly stated in the application. The application will be filed in duplicate and the copy served in advance on the opposite party. In case the opposite party writes “not opposed”on the application, it shall be taken up in Chamber, otherwise, all applications shall be listed before the Court along with the case. All applications shall clearly state the grounds on which adjournment is sought and shall be supported by an affidavit of the party seeking adjournment.

Sd/-

[Justice (Retd.) Dev Darshan Sud]
President

 

Adjournments before High Court

Adjournments are normally not encouraged as they leave to accumulation of cases and increase pendency. However, to accommodate the parties or the lawyers, at times, adjournments are granted. Ideally, an adjournment is required to be moved at least one day in advance with a No Objection from the other party(s) consenting to the matter being adjourned. In such cases where No Objection to an adjournment is consented to by the other party(ies), the Hon’ble Courts normally adjourn the matter. Adjournments are also sought in cases where prior adjournment applications/slips are not moved. The reasons for these adjournments can be the inability of the parties to complete the proceedings, nonavailability of the parties or their counsel, personal difficulties of the parties or the counsel, etc. Even though the Hon’ble Courts are normally don’t entertain such requests, especially where the matters are listed for final disposal. However, in the interest of justice and keeping in view the objective of deciding the cases on merits, the accommodation is granted to lawyers or the parties by granting it.

Courts grant adjournment liberally. More so, if the cause is sufficient. However, a party who has been allowed sufficiently long time to reply may not be entitled to adjournment. But the necessity to furnish an effective reply against a show cause notice cannot be overstated. Therefore, to demonstrate that justice is done, the authority has to grant adjournment where the request is for a valid reason. In such cases, granting adjournment too, therefore, could be a part of the principles of natural justice.

Delay which occurs due to unnecessary adjournments on the part of one or the other party has been a matter of concern by the judiciary and legislature alike. Sweeping and important amendments were made in the Code of Civil Procedure with a purpose to ensure speedy disposal of cases. In the process, Order 17 of the Code of Civil Procedure was also amended. Amendment now provides that a party shall not be granted adjournment more than three times during hearing of the suit. Purpose obviously is to put a cap on the number of adjournments which the parties take in adducing the evidence. In Salem Advocate Bar Association, Tamil Nadu v. Union of India - AIR 2005 SC 3353, the Supreme Court commented upon these amendments in Order 17 Code of Civil Procedure in the following words:

While examining the scope of proviso to Order XVII Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII Rule 2 incorporating Clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII Rule 1.

In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted.

An adjournment cannot be sought on the ground that Counsel is out of station - Opportunity was given to the counsel to argue the matter, however he could not argue the matter – The appeal was dismissed for non-prosecution - Court also observed that under no circumstances, application for restoration shall be entertained

The learned counsel for the appellants is not present in the Court today and it is stated that he is out of station. Court held that, this is no ground to seek an adjournment. Accordingly, the honourable court rejected the request for an adjournment and asked the learned counsel to argue the matter. However he submitted that he does not know anything about the case. In these circumstances, the honourable court dismissed the appeals for non-prosecution. Court also made it clear that since they have not found it to be a good ground for adjournment, under no circumstances, application for restoration shall be entertained. – [Ram Siromani Tripathi v. State of U.P. – Date of Judgement : 07.02.2019 (SC)]

Adjournment sought due to death in family is justifiable

It was held that it is not disputed that the matter was posted on 07.07.2015. It is also not disputed that prior to such date the appellant had only sought two adjournments. On account of some unavoidable reasons of the death in the family of the counsel of the appellant, the concerned counsel was unable to represent the appellant on the relevant date. The fact that there was a death in the family of the counsel of the appellant is not disputed by the learned Counsel appearing for the respondent. In such circumstances, considering that the appellant are not unnecessarily delaying the matter and as on the relevant date there was justifiable reason which prevented the counsel for the appellant to remain present before the Tribunal, we find that the Tribunal was not justified to refuse an adjournment. Hence, in the peculiar facts and circumstances of the case and in the interest of justice, the learned Tribunal could have given an opportunity of hearing to the appellant for the subsequent date. Having failed to grant a short adjournment has resulted in passing the impugned order in breach of the principle of natural justice which calls for the interference of this Court. (Related Assessment Year : 2016-17) – [Zuari Global Ltd. v. PCIT - Date of Judgement : 16.02.2016 (Bom.)]

In this case the Tribunal dismissed the appeal ignoring request of both parties for adjournment. Tribunal failed to decided appeal on merits but simply dismissed appeal. Although both the parties were requesting for adjournment as their counsels were not available. The Court held that the Tribunal could very well consider their request for adjournment or proceed to decide the case on merits but dismissal of appeal was not proper. The court also held that parties should be afforded opportunity to address arguments on merits and therefore impugned order passed by the Tribunal was set aside. – [CIT v. Avon Cycles Ltd. 2009 TMI 32473 (P&H)]

Duty of Tribunal – Passing ex-parte order

Where the Tribunal passed an order in absence of appearance by the Appellant, it had to pass the order on merits. The Tribunal could not dismiss the appeal for default appearance by the appellant. The case was remanded to Tribunal. – [Rajendra Prasad Borah v. ITAT and Ors. - Date of Judgement : 12.11.2008 (Gauh.)]