Minutes Of Meeting Between the Tribunal & the Delhi Bar

DISCUSSION PAPER AGREED AT MEETING OF BAR & BENCH HELD ON 10TH NOVEMBER 2010 AT 07:30 PM

1. Website

a. The retrieval of orders from the website pronounced by the Tribunal is very difficult as one is required to necessarily type the ITA number, the date of the order etc. It is suggested that the retrieval could be on the lines of the High Court web site where the orders are maintained name wise, year wise, Judge wise, date wise and on the basis of the ITA Nos.

The particulars of the RTI officers, region wise also need to be given.

The particulars of the Registry at various benches across the country need to be given along with the address and telephone numbers.

The Tribunal should also consider posting on the website, its orders/instructions that are issued from time to time by the various benches and more particularly the Hon’ble President of the Tribunal.

b. It is requested that every copy of the order pronounced may also be marked to the Bar Association’s e-mail/website so that we can catalogue it section wise, subject wise etc for the benefit of our members.

Hon’ble Vice President’s Reply -1.

A number of suggestions of the Bar Association have already been implemented. I agree that the retrieval of orders of the Tribunal should be made simpler. We have already written to our website manager at Ahmedabad to make necessary modifications in the website of the Tribunal in a manner that the orders are maintained name-wise, year-wise, judge-wise, date-wise and on the basis of the ITA numbers. It is hoped that the needful would be done by the end of the month. I am sure that once the orders are maintained in the manner stated above, the need for marking each order to the ITAT Bar would be obviated.

2. We find that some Members of the Tribunal in Delhi are performing double bench duties since there is a shortage of Members. We understand that the objective is to ensure that the maximum numbers of benches are operational. However, we often find that due to the paucity of time the second bench generally takes up small matters and adjourns most of the cases. Consequently, a number of members of the Bar Association who have been waiting for long have to go back without being heard. It is suggested that considering the highly manageable pendency in Delhi, double shift of members may be resorted to only in exceptional circumstances.

Reply-2. I am aware of this problem being faced by the members of the Bar Association. In order to minimize the lead time between the two Benches, I do not name the judicial member who will sit in the second Bench in the fortnightly constitution. As a result, whichever a judicial member gets free from the first Bench, due to its early completion of board, he will be available to sit on the second bench. This will reduce the lead time between the two benches to the bare minimum. This arrangement shall take care of the problems even after this arrangement if inconvenience persists please feel free to discuss with me any time.

3. It is also found that some benches such as F Bench, have unusually large number of cases in their docket and the hearing in these benches comes up after many months. Your honour could consider dividing the number of cases more evenly amongst the benches.

Reply-3 I am aware that some Benches had larger number of cases then the others because of the alphabetic division of cases. I have already passed necessary orders removing cases from the benches which are overburdened and placing them in the other benches. The division is now more even and I am sure, this will result in cases being uniformly posted for hearing.

4. It has been a long-standing request of the Bar Association that whenever a bench collapses or is non-functional for the week, all the cases posted therein should be fixed for hearing on a particular date and the said date should be communicated on Friday itself when the bench constitution is announced. This would obviate the problem of our members who very often do not receive notices from the Registry on time.

Reply-4. This suggestion is accepted. We will try as far as possible to fix a particular date for all the listed cases whenever a bench collapses or is non-functional for the week. We are also ensuring that the Registrar posts the notices well in time to the assessee and the Department alike.

5. Since many years now, Friday is kept for disposing off miscellaneous applications, stay applications, and pronouncement of orders. It is requested that the principle of consistency be applied to this system and the same be continued.

– Friday being a lighter day, the members of the Bar Association are able to attend to their routine work, prepare cases for the ensuing week and hold meetings and conferences with clients on Fridays and Saturdays.

– A number of members who undertake outstation work generally request Commissioner Appeals to hear them on Fridays.

– Besides, it is quite convenient for the Members of the Tribunal also to utilise the time available on Fridays for writing orders and disposing of miscellaneous work.

It is therefore suggested that the Honourable Vice President may kindly consider continuing with the past practice as the same has served the Bar and the Bench quite well.

Reply-5. As miscellaneous work on Friday had reduced considerably and it was, therefore, thought that in order to reduce pendency, cases be fixed on 2nd and 4th Friday of the month. I understand the difficulties of the members of the Bar. We will henceforth try to fix part heard matters on Friday and also those matters which are small and do not take much time.

6. The Hon’ble Vice President is aware of the problem the Bar Association has had to face recently because of the Home Ministry’s direction to allow ingress into the building either on show of identity cards issued by the Ministry or by obtaining daily entry passes. Whereas the Bar Association has been able to get identity cards issued for a number of its members yet there is still a large number of infrequent counsels coming to the Tribunal who are unnecessarily stopped and questioned at the entry gate. It is suggested that some official from the Tribunal be deputed from 10 AM to 1PM who could take calls from the entry office on the ground floor and allow entry to these counsels into the Tribunal.

Reply-6 We have already spoken to the Home Ministry Security officials at the reception on the ground floor. They have assured us that Chartered Accountants and Advocates carrying their identity cards issued by their respective associations shall be allowed ingress to the Tribunal without any problem. They will, however, have to make entries in the register maintained at the reception. This procedure is to be followed only for those members of the bar who do not have identity cards issued by the Home Ministry.

7. It is very often found that in case of Departmental Appeals the notices of hearing before the Tribunal are received very late. (Mostly 2-3 days before and sometime on the same day or even post the hearing). Almost invariably the notice of hearing is not accompanied by Form 36 containing the grounds of appeal. This results in unnecessary adjournments besides waste of time of the Tribunal and the members of the Bar Association.

Reply-7 We have taken up this issue in all its seriousness. The necessary instructions have been issued to the appeal section to ensure that notices of hearing are sent to the assessee well in advance and are always accompanied by Form-36 containing the grounds of appeal. Kindly bring any lapse to my notice.

8. The members of the Bar Association feel that the Tribunal is rather over indulgent with the Departmental Representatives. They are allowed adjournments quite liberally where as stricter standards are applied to the counsels. They seldom furnish paper books and the files of the Department relating to the case when called for generally take months to materialize.

Reply-8 It is incorrect to state that stricter standards are applied to counsels of assessees vis-a-vis the Departmental Representatives. I have however fixed a meeting with the concerned CCITs and will take up all matters relating to the Departmental Representatives.

9. The traffic position of Delhi and its satellite cities is quite well known. Sometime our members are not able to reach on time for the hearing before the Tribunal. We have two attendants in the Bar Room who besides discharging other functions also attend to calls of the members of the Bar Association. Whenever any member is not likely to make it on time for the hearing, he can be told to call up the Bar attendant who can in turn inform the respective bench clerk about the name of the case, the name of the member representing it and the reason for the delay, well before the hearing. The bench clerk may then inform the Hon’ble Members about the said fact and the case could be passed over.

Reply-9 I understand the traffic position of Delhi and its nearby cities. Henceforth, in all such cases where the counsels are unable to reach because of traffic problems, we will pass over the matters and take them up at the end.

10. The Dispute Resolution Panel constituted under the Income tax Act comprises of officers of the rank of Commissioners of Income Tax. The orders passed by them are directly appealable before the Honourable Tribunal. Very often when the applications for stay are made before the Honourable Tribunal, it is insisted that the rejection of stay application by the Commissioner of Income Tax be obtained before the petition for stay is to be proceeded with by the Tribunal. Since after the passage of orders by the DRP, Commissioners are functus officio as far as stay of demand is concerned very often they go ahead with the recovery of tax even while the stay applications are pending before the Tribunal. It is requested that in respect of orders passed by DRP the rejection of stay application before the Commissioner’s as a condition precedent may not be insisted upon and the Department be instructed not to undertake any recovery action till the application for stay before the Tribunal is disposed off.

Reply-10. I have issued detailed instructions in Mumbai in 2007 when I was the Vice-President there. These instructions outlined the procedure to be followed both by the Department and the assessee when the application for stay of demand had been filed before the Tribunal. The said instructions had been issued after a meeting with the CCIT’s in Mumbai. I will be holding a similar meeting with CCIT in Delhi and will try to implement these instructions in Delhi as well.

11. Sometimes orders of the Tribunal are received at variance with the pronouncement made in the open court. One of the reasons could be the considerable delay between the oral pronouncement at the time of hearing and the communication of the written order.

Reply-11. The orders should not be in variance with the pronouncement made in the open court. Whenever such orders are passed, the aggrieved may move a miscellaneous application for rectification.

12. In respect of covered matters, when such is pointed out to the Bench with a copy of the Tribunal’s order as relied upon, very often, the other side, even before receiving a copy of the order, denies the issue being covered. Time is then freely given to the other side to respond. It is requested that in respect of such matters, due importance is accorded to the Tribunal’s orders which are pleaded to be relied upon.

Reply-12. Where the counsel states that matters are covered by the order of Tribunal, the members generally allow time upto the raising of the Bench to the Department to respond. However, if it is considered that the time allowed is too less, the members would allow reasonable time depending upon the complexity of the issue, so that respectability to the Tribunal’s order is ensured.

13. Because of a heavy matter being on top of board, small matters tend to get adjourned. Normally small matters should be taken up first, and thereafter the heavy matter should be taken up. Often again, hearing in the heavy matter is not complete, and rolls over to the next day as well. A procedure may be devised to maximise disposal to the satisfaction of the Tribunal and the litigant.

Reply-13 Yes, I agree that small matters should be taken up first after which the other matters should be heard. Members of the Tribunal generally follow this principle as far as possible. However more attention will be given to this aspect.

14. Often, representation on behalf of the Department is done by all the DR’s present before that Bench. Such free participation is justified on the grounds of their being officers of the court and ostensibly helping the court in the discharge of its judicial functions. Such procedure is unknown in the higher courts, where the norm is ‘One Case, One Counsel per Side’.

Reply-14 Yes, I agree that the principle of one case one counsel per side should be strictly followed. I am sure, the members of the Tribunal will ensure the implementation of this principle.

15. A procedure for disposal of applications for early hearing may be devised and instituted.

Reply-15 All appeals by computerised method are fixed on 60th day of filing which by implication amounts to Early Hearing. In addition, there are certain parameters within which if the case falls, it should be heard early. such list of parameters is not exhaustive. Normally, cases where the assessee is in great financial strains or is a senior citizen or is likely to go abroad for long for is in the process of closing done his business or where the additions are repetitive/covered or matters involving Section 263 / Penalties etc. (Attach Proof), an early hearing may be requested on an application made to the Vice-President.

16. Even if applications are made for adjournment 3 days in advance of the date of hearing, in most cases, they are not being attended to. This causes avoidable anxiety and tension, since such prayers are to be entertained only in event of the counsel travelling out of town or in respect of an outstation counsel who is unable to travel to Delhi.

Reply-16 The application for adjournment before the constitution is announced can be made to the Vice President. As soon as the constitution is announced, all adjournment applications should be addressed to the concerned Bench. The modalities of how to consider applications for adjournment received in advance will be worked out by me in consultation with my colleagues and we will lay down procedure which will avoid anxiety & tension.