Part

Particulars

A

Guidelines issued by Hon'ble Supreme Court for Virtual Court Proceedings

B

Measures taken by Income Tax Appellate Proceedings (ITAT)

C

Measures taken by Central Board of Indirect Taxes & Customs (CBIC)

D

Conclusion

Guidelines for Court Functioning Through Video Conferencing During Covid-19 Pandemic vide Suo moto Writ No. 5/2020 dated 06.04.2020:

The Hon'ble Apex Court, took cognizance of the matter Suo-moto in the midst of Corona pandemic and national lockdown in India on 25th March, 2020. The Hon'ble Court considering the seriousness of the issue and thereby observing social distancing have adopted measures across the Supreme Court and High Courts as well as tribunals to reduce the physical presence of lawyers, litigants, court staff, para legal personnel and representatives of the electronic and print media in courts across the country and at the same time ensured that there is continued dispensation of justice. The challenges occasioned by the outbreak of COVID-19 need to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it. It observed that is necessary to ensure compliance with social distancing guidelines issued from time to time by various health authorities, Government of India and States. Court hearings in congregation must necessarily become an exception during this period. Thus, the apex court in exercise of the powers conferred under Article 142 of the Constitution of India, directed as under:

i.

All measures that have been and shall be taken by this Court and by the High Courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful;

ii.

The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies; and

iii.

Consistent with the peculiarities of the judicial system in every state and the dynamically developing public health situation, every High Court is authorized to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies;

iv.

The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion failing which no grievance in regard to it shall be entertained thereafter.

v.

The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.

vi.

The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. If necessary, in appropriate cases courts may appoint an amicus-curiae and make video conferencing facilities available to such an advocate.

vii.

Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.

viii.

The presiding officer shall have the power to restrict entry of persons into the court room or the points from which the arguments are addressed by the advocates. No presiding officer shall prevent the entry of a party to the case unless such party is suffering from any infectious illness. However, where the number of litigants is many the presiding officer shall have the power to restrict the numbers. The presiding officer shall in his discretion adjourn the proceedings where it is not possible to restrict the number.

At this juncture, it is relevant to quote the findings of Hon'ble Apex Court in case of State of Maharashtra v Praful Desai (2003) 4 SCC 601; wherein the court held that the term 'evidence' includes electronic evidence and that video conferencing may be used to record evidence. It observed that developments in technology have opened up the possibility of virtual courts which are similar to physical courts. The relevant finding of the judgment is reproduced as under:

"Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place…Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence… In fact, he/she is present before you on a screen. Except for touching one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other… Recording of such evidence would be as per "procedure established by law"."

In line with guidelines issued by the Apex Court, Income Tax Appellate Tribunal (ITAT) has made an announcement dated 01^st June'2020; announcing E-filing Portal wherein the applicants and respondents can e-file their appeals and other applications in respective ITAT, without getting affected by the scourge of corona virus and also maintaining social distancing at the same time. E-filing portal is ready to launch post compliance of security audit in accordance with guidance issued by the Government of India.

In this period of lock-down, Hon'ble Mumbai ITAT created a history by hearing a stay petition, on humane ground during period of complete lockdown, through video conferencing from home offices of Quorum Members. The relevant finding of the stay petition is reproduced as under:

With respect to virtual court proceeding even Central Board of Indirect Taxes & Customs (CBIC) has issued instruction dated 27.04.2020, stipulating broad guidelines for conduct of personal hearings in virtual mode under the Customs Act, 1962 which would mutatis mutandis apply to Central Excise / Service Tax also. The salient features of hearing by virtual mode is stated as under:

•

Both the parties shall have to give consent to avail personal hearing through video conferencing either at the time of filing appeal or reply or immediately after issue of guidelines. Thus, if an appeal has been filed two years back, option for virtual mode may be requested now.

•

Parties shall be informed of date and time of hearing along with a Video Conference (VC) link which is expected not to be shared without approval of authorities.

•

The vakalatnama / power of attorney / authorization shall be accompanied by copy of photo Id and mailed to the authority on official email id.

•

VC shall be held from office of authority through official VC facility

•

Virtual hearing shall be conducted through applications like VIDYO or through another secured computer network. Parties should download such application and join the VC at the allotted time.

•

Where parties wish to participate in hearing along with advocate, it should be intimated to the authority in advance. They may also join the proceedings from their own office.

•

The submissions made will be reduced to writing as a record of personal hearing. The same will be sent ion PDF format within one day of hearing.

•

If the same requires any modification in the content, it can be done, signed and sent back to the adjudicating authority within 3 days.

•

If record of personal hearing is not sent back as such (in 3 days), it will be presumed that there is agreement with the contents and authority shall decide the case accordingly. No further modification shall be entertained after 3 days of receipt of mail by the parties.

•

Such record of personal hearing shall be deemed to be 'document' under section 138 of Customs Act, 1962 and section 4 of Information Technology Act, 2000.

•

If any document is to be submitted, during the personal hearing, the same may be done by way of emailing the scanned copy of the self-attested document immediately after the virtual hearing but within 3 days of the hearing, excluding the date of hearing.

•

Representations of the department (respondent) may also join the personal hearing through VC by submitting necessary details in advance for link.

•

One needs to provide email address for correspondence.

•

All persons participating in VC shall be appropriately dressed and maintain decorum.

•

Based on the CBIC instructions, Commissionerate's have issued guidelines for conduct of virtual hearing. The use of 'WhatsApp' facility is also being allowed till any other more secure or easier mode is established.

However, just like coin has two sides, similarly even virtual court proceedings have also imposed certain hardships or difficulty. Some of these hardships faced by the lawyers/Authorised Representative (AOR) of the appellant/respondents are mentioned below:

i.

There are problems with audio and video quality of hearings, which results in the lawyers not being able to effectively put forth their arguments.

ii.

Many lawyers are not well equipped with knowledge on the use of computers and hence they are unable to participate in the process effectively.

iii.

Many a times, when a Senior Advocate or arguing Counsel appears, he/she is left to appear on their own. The AOR/briefing lawyer is unable to assist them effectively in this virtual medium.

iv.

Many a times, all documents filed through E-filing are not available with the Bench. Etc,