Tribunal cannot transfer pending appeal from one Bench to another Bench in another State: Bombay HC

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Tribunal cannot transfer pending appeal from one Bench to another Bench in another State: Bombay HC

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[2021] 127 taxmann.com 379 (Bombay)

 

Short Overview of the case:

 

The court observed as under:

 

  • From a careful analysis of section 255, more particularly sub section (5) thereof, it is not discernible as to how power of the President to transfer a pending appeal from one Bench to another Bench outside the headquarters in a different State can be said to be traceable to this provision.

 

What sub section (5) says is that the Tribunal shall have power to regular its own procedure and that of its various Benches while exercising its powers or in the discharge of its functions.

 

This includes notifying the places at which the Benches shall hold their sittings e.g., a particular Bench at Mumbai may hold its sittings at, say, Thane for a particular period for administrative reasons.

 

This provision cannot be interpreted in such a broad manner to clothe the President of the Tribunal the jurisdiction to transfer a pending appeal from one Bench to another Bench outside the headquarters in another State and a proceeding before the Tribunal shall be deemed to a judicial proceeding within the meaning of sections 193, 196 and 228 of the Indian Penal Code and it shall also be deemed to be a civil court for the purpose of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898.

 

Therefore, there is no manner of doubt that a proceeding before the Tribunal is a judicial proceeding and for certain limited purpose it is deemed to be a civil court. When an appeal or a bunch of appeals are being heard by a Bench of the Tribunal in one State, an order on the administrative side can not be passed by the President transferring a live appeal from one Bench to another Bench that too in a different State outside the headquarters as no such power is discernible in section 255 and reading or conferring such a power would amount to interference in a judicial proceeding of the Tribunal.

 

  • As per rule 4 of Income-tax Appellate Tribunal Rules, 1963, where there are more than two Benches of the Tribunal at any headquarter; when there are multiple Benches in a headquarter, the President or, in his absence the senior Vice President etc. may transfer an appeal or an application from one of such Benches to any other.

 

Meaning thereby that it is a transfer of an appeal or an application from one Bench to another Bench within the same headquarters.

 

For example, in Mumbai the number of Benches is twelve and in Bangalore, the number of Benches is three. Thus, this provision can be invoked to transfer an appeal from one Bench in Mumbai to another Bench in Mumbai or from one Bench in Bangalore to another Bench in Bangalore.

 

But this provision cannot be invoked to transfer a pending appeal from one Bench under one headquarter to another Bench in a different headquarter.

 

Conclusions :

 

When an appeal or a bunch of appeals are being heard by a Bench of the Tribunal in one State, an order on the administrative side can not be passed by the President transferring a live appeal from one Bench to another Bench that too in a different State outside the headquarters as no such power is discernible in section 255 and reading or conferring such a power would amount to interference in a judicial proceeding of the Tribunal.

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