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New ITAT Members Should Be Formally Tutored Of Their Duties & Rights Before Being Permitted To Judge Matters

The author, an eminent senior advocate, points out that the orders passed by the ITAT have severe ramifications on the taxpayers and the department and that it is essential that its Members undergo rigorous training before being permitted to exercise their powers. The author expresses concern that the newly appointed Members of the Tribunal do not appear to have undergone an “orientation” course and have been straightaway permitted to hear matters and pass judgements. He urges that the old practice of formally tutoring the new Members of their duties and responsibilities and of apprising them of the basic fundamental characteristics of a judge should be revived and implemented immediately. He emphasizes that the orientation course and judicial training will help the new Members to discharge their duties more efficiently and uphold the dignity and honour of the Tribunal

Income–tax Appellate Tribunal which was established on 25-1-1941 will be celebrating its platinum jubilee on 25-1-2016. Today, the Tribunal is considered as one of the finest institutions in our country. The credit must go to the Hon’ble Members who administer the justice and to the Tax Bar which represents matters before the Bench. Very recently, the Government has appointed 36 new members, many of who are very young and they have a long tenure to serve as members of the Tribunal. They have greater responsibility to preserve the purity and integrity of this Institution being one of the finest institutions in our country.

Earlier, whenever new members were appointed, there used to be an orientation course for the new members for at least 15 days which was addressed by Hon’ble judges of the Supreme Court, judges of High Courts and senior members of the Tribunal on subjects like natural justice, tax Jurisprudence, principles of interpretation especially of taxation statutes, etc. There also used be an ‘All India Members’ Annual Conference’ to discuss and deliberate on various issues concerning the Tribunal, to enhance its working and performance to a remarkable level. I have had the opportunity and fortune of attending and addressing four such conferences.

One would appreciate that the Income-tax Act, 1961 refers to 98 other Central Acts and various State legislations. So, there is a marriage of these allied laws referred into IT legislation, which too are required to be necessarily studied in the course of delivery of judgments, if relied upon by the Bar in the course of hearing before the Tribunal. Therefore, in-depth knowledge of these general laws referred to in the IT Act, will surely help Members to deliver qualitative judgments.

Various articles published in ‘Diamond Jubilee Souvenir of Income–tax Appellate Tribunal in the year 2001’ will be a fountain of inspiration to all young Members of the Tribunal, who have joined the Bench very recently. They may therefore like to read the same for their grooming. For their ready reference, few of them, are cited below:

– “Principles of Natural Justice” by Hon’ble Justice Mrs. Sujata V. Manohar, Supreme Court of India (2008) AIFTPJ – March- P. 5

– “Rules of Precedence” by Hon’ble Justice Mr. B. N. Srikrishna, Supreme Court of India

– “Vision 2020-A Road ahead” by Hon’ble Justice Mr Ashok Bhan, Supreme Court of India (2008) AIFTPJ – June – P. 5

– “The Key to the Success of the Tribunal” by Hon’ble Justice Mr. Mohit S. Shah (2011) AIFTPJ – December – P. 6

– “Role of Tax Tribunal in the era of globalisation” by Hon’ble Mr. Justice (Dr.) D.Y. Chandrachud

– “Rules of Interpretation of Tax Laws” and “Conventions & Procedure of Income Tax Appellate Tribunal, and “Qualities of a Good Judge” by Hon’ble Justice Mr. T. N. C. Rangarajan

– “Qualities of a Judge and Principle of Natural Justice” by Hon’ble Justice Mr R.V.Easwar Judge Delhi High Court (2012) AIFTPJ – March – P. 7

– “Effective dispensation of Justice: Role of the Tribunal” by Hon’ble Mr. R.V. Easwar, President ITAT. (2010) AIFTPJ – June – P. 5

– “The Art of Writing Judgments” by Hon’ble Mr. M.A. Bakshi, Vice-President (2008) AIFTPJ – April – P. 4

– “Conduct of Members – On and off the Bench” by Hon’ble R.P.Garg, Vice President, (Regional Conference of ITAT, 15th July, 2006

– “Conduct on and off the Bench” by Hon’ble Mr. P.P. Parikh, Vice President (2008) AIFTPJ –April – P. 15

– “Art of writing Judgment” by Hon’ble D. Manmohan, Vice President, ITAT (2012) AIFTPJ – March – 19

– “Landmark cases” (Selected Cases) by S. Rajaratnam (2008) AIFTPJ – April – P.21

– Guidelines to Hon’ble members of ITAT for drafting orders, letter addressed to the Hon’ble Members by The President of ITAT posted on 25-6-2008 .www.itatonline.org

– Code of Ethics adopted by the members of the ITAT – Letter dated 20-6-2008 by the President of ITAT. www.itatonline.org

– “My Ideal Tribunal Member by Shri S.E. Dastur, Senior Advocate (2001) AIFTPJ – April-June – P.33

There are conventions which members may have to follow, both on and off the Bench, which can be shared by the senior Members of the Tribunal as well, with new members to have good rapport and brotherhood amongst themselves.

It may be desirable to make a compilation of all the above cited articles and whenever a new Member joins the Bench, the same may be presented to him along with convention book which may prove a treasure of learning at his desk to help him to deliver qualitative and landmark Judgments. If an opportunity is provided the Federation will compile all the above referred articles and will present the same to the new members along with message and vision from the Hon’ble President.

An assessee rings the bell of justice in the Tribunal and High Court only when the Assessing Officer levies taxes or make additions which are not in accordance with law. As appeals involves time and money, before doing so he makes a careful cost benefit analysis and elects to file an appeal where the stakes are high and there are chances of success. Many a times though he may be having very good case in appeal considering the litigation cost he prefers not to file an appeal. He is no academician and he does not derive any pleasure in obtaining a judgment for the sake of publicity or for laying down a legal precedent. The revenue on the other hand files an appeal in most of the cases mainly because there is no accountability and the fear of investigation. One will find more than 65% appeals before the High Court is of the revenue.

In one of the Conferences a well-known tax Judge who headed the Tax Bench for number of years stated that whenever an assessee filed an Reference Application under section 256(2) for referring question of law he normally used to admit the reference on sound reasoning that he always felt that when an assessee approaches High Court definitely some injustice must have been done to him otherwise why he will spend lakhs of rupees in tax litigation, therefore at least he deserves admission. Whether he will succeed or not the decision will be taken at final hearing.

The Tribunal being a final fact finding authority the assessee can file an appeal to High Court only on a substantial question of law. In Mumbai, for admission it takes nearly two years and if admitted, another 13 years for final hearing and disposal. Therefore, if any wrong order is passed against an assessee, it takes nearly 15 years to get it reversed.

Under the circumstances, there is greater responsibility on the Bar to assist the Bench to arrive at correct decision. Members of the Tribunal may please bear in mind that by hearing the appeals, they are not merely adjudicating on the issues before them but they are invariably deciding on the fortunes of the assessees, as per law. Therefore, one wrong decision against an assessee may possibly ruin his life and relegate him to the position of a pauper, and he may be held liable for penalty and prosecution, the same against the Government, may affect the coffers of the Government to an extent of a drop in a vast ocean. Considering this gravity and effect of the judgment, Tribunal has a greater responsibility to the citizen in our democratic set-up.

Learning is a continuous process for any professional for continuous updation, professionals attend various seminars, workshops to get updated on case laws and to understand the development of law. It may equally be desirable that there could be an annual conference of Members of the Tribunal to interact with each other and share knowledge and experience to improve the justice delivery system so that the name of the Tribunal will be a shining feature of the IT Act.

The Hon’ble President of the ITAT, Hon’ble Justice Dev Darshan Sud (Retd.) is making a sincere attempt by sharing his judicial experience and knowledge to enhance the status of the institution by following the convention and practice followed by High Courts. One will be able to see the changes in the process of justice delivery system in the years to come. Hon’ble President is open to any constructive suggestions for better administration of justice. Readers may therefore send their suggestions to the AIFTP which will enable the ITAT Bar Associations’ Co-ordination Committee, to forward the same for the consideration of the Hon’ble President.

On behalf of Editorial Board and on behalf of the AIFTP, we offer our best wishes to all the new Members of the Tribunal, a sustained judicial career and a very bright tenure as Members of the Tribunal. We trust that the Tribunal should become paragon in the administration of justice.

Jai hind

ksa_sign
Dr. K. Shivaram

Editor-in-Chief, AIFTP Journal

Reproduced with permission from the AIFTP Journal

23 comments on “New ITAT Members Should Be Formally Tutored Of Their Duties & Rights Before Being Permitted To Judge Matters
  1. Dipakkumar J Shah says:

    my only question is that how a Justice can pass the order over riding Automatic Dismissal of the ppetition for want of some information. Before dismissing the case , it is very important to see that whether Notice had been served to the other party at the address given in the Petition !!!!or not for these 6 years on the record of Notice issuing department?
    Thanks for immediate reply.
    I am obliged to you Sirji,

  2. Dipakkumar J Shah says:

    Sirji,
    With due respect to All , This case was with High Court Under 226 Constitution of India. See the funny position. The then Chief Justice Mr Y R Meena , some 6 years back , to file New Addresses of S B I of three entity. If it is not filed within 2 weeks , automatically this petition would be deemed to be dismissed. On the day of next hearing , I appeared Before Hon. Justice Mr J M Panchal and other puine . I told to Hon. Court that the address is as per given in Web of the Associate banks. But advised me that , since I did not file Address to serve the petition , therefore deemed to had been dismissed???!! No order was passed through by Hon. Justice J M Panchal and other Puine on the record. Till 1st August 2015 the Petition was pending on the record of Hon. High Court. Since form the date of filing of the petition till 1st August 2015 no notice could be served as the address was wrong or so? No record in the order !! State Bank of India also did not give reply as to different address of Asociates bank till March 2015 !!! Nor new address was given to me , if different address is there. What play had been played by Advocates on Record and Office of High Court of Gujarat GOD Knows. By High Court rules there is a provision in the High Court Rules that whenever the matter is put up on Board of Party In person before putting up the case Petitioner should have been intimated for the placement of case on Board!! No notice no oreder !!!
    This is our Judicial Syatem and part of behind curtain play by State Bank of India and their Advocates on record. This case is non Fulfillment of Terms of section of India Contract Act . Where a written Agreement of Free of Charge ATM was granted , all account holder should have been taken a fresh signature on paper as per contarct act , where there is a change in terms and condition. But SBI and Associates gave simple News Paper Advertisement and started debiting Rs 50/ per account . In one single day At least Rs400 Crores had been taken a way from the account holder through this advertisement only? Total ignorance of Law of Land and also bad practices by Bank giving wrong information that due to Address petition could not be served !!. But what about till and after the order some 5 years back. !!! Address given in the petition was as per web address of Associate Bank..
    This is not fault of Hon. High Court of Gujarat!!!!!

    • Dipakkumar J Shah says:

      How a matter deemed to be dismissed by one order , how another Judgment can give Judgment over it !! After passing such order !!!!! This is done by Experienced Person as a , acting , Chief Justice of High Court of Gujarat. Having appeared as Government Advocate also!!!!

    • Till order is passed, the issue is not resolved. If not resolved, the status qua ante sustains as on the date the is raised. SBI or other associates without tacit permission of the hon court cannot take unilateral action of collection of fee of rs.50 per ATM a/c holder.
      So obviously it is a breach of contract attracting sec 17 of the contract Act, – fraud – by the banks concerned.

      Besides, the banks are subject to damages provision under law of torts, that could be moved by every ATM account holder, if he fails on account of ignorance of law, could never he held he had given up the stand you took in yr petition.

      It is all the more necessary every ATM account holder can jointly file his or theirs case under art.226 writs with relevant high courts, as the ATM a/c holders are spread all over india, either before their jurisdictional high courts or collectively under art 32 before the hon supreme court of India r/w art 14 r/w contract act – breach of contact r/w sec 17 of contract Act 1872 r/w tort law for exemplary damages against all relevant individual bank entities.

      indeed, it would be a very long petition, hon court may grant damages under law of equity under natural justice, if the claim in the petition is proved before the hon court or courts concerned.

      Interestingly enough Courts are like legendary Hanuman, unless their or its power(s) are brought to their or its Notice, like Hanuman they or it might ignore.

      Powers are per sections of statute(s) or the articles of the constitution concerned, that way the idea of advocacy by advocates , assuming competency to tackle the issues per petition (s) concerned, or though a petitioner or petitioners- in- person could by themselves be argued before the relevant benches in person in the alternative.

      Questions of law on the facts synchronized could really be handled, as there are so many statutes each conflicting with the other, as legislator worthies are taken for granted by ministries are concerned by their legal draftsmen , that depends on their knowledge of the whole gamut of statutes passed by the legislatures, besides die appreciation on the conflicting provisos – like sec 141 notices are misused by revenue under random scrutiny cases, if you are ignorant as a tax payer you are levied penalties u/s 271 of the indian income tax Act – any ROI need necessarily be tackled within the limitation prescribed under sec 141 under its various explanatory sections , the revenue ignorance to read the relevant sections meticulously as is expected under art.51A of Part IVA of the constitution r/w art 265 – due process of law – procedure of law – but yet the revenue officers being ‘public servants’ yet they behave as if they are not accountable to the public but they continue to believe they are servants of the ministry or ministers and the like – assumption is public servants must and should work for public – you may know Gita .Ch. VII.3…”Among thousands of men scarcely one strives for perfection and of those who strive and succeed, scarcely one knows ME(Lord Krishna) (godly nature) ,in truth, here the statutes here Indian Income tax r/w constitution of India,play invisible god – but yet revenue officers are such kind of humans, really replicating of those kind of ‘men’ Gita explained, above.

      so the presumption is Lay men are supposed to know how to defend themselves with the benefit of competent advocates.

      So God is every where but invisible

  3. Many a time lack of communication renders havoc on petitioners.

    After all hon court can provide if one approaches the registrar general of the concerned high court in the case of petitioner in person cases.

    Advocates being court officers know the procedure. Invariably advocates practicing in high court cannot afford to plea his ignorance of procedure of the court concerned…even in such cases hon high courts condescended to reinstate the cases thus dismissed,

    Dismissal without merit can always resurface in the courts concerned that is the principle of natural justice in cases where dismissals of cases not on merit means no justice is done.

    When the petitioner in person or otherwise do not appeal before the court, it would be presumed the petitioner had got his matter settled with the respondents concerned.

    so before blaming any please introspect that is wisdom .

    you have an issue that is still not settled or resolved is obvious, from your angry post on the judges, so you kindly revisit the court to reinstate your matter the hon courts generally do, the courts are your protectors, though public servants may not yet they need to know by word ‘public servants’, they are servants of citizens not the governments of their controlling ministers of ministries or legislators sir but due to ignorance public servants like chairman SBI or any other of its officers they err several times thinking they are above constitutional tenets as, as also general clauses Act in place.

  4. Again it needs to be noticed that petitioners in person face these kinds of problems.

    Advocates when filing cases are traced by the Bar association concerned resorting to the information to Bar council where the advocate is licensed to practice.

    Hon courts look for right information about the petitioners ..if petitioner in person is there he has to inform the registrar general his change of address to get right communication from the hon court registrar.

    your ignorance n=might be condoned by court, as you had not been posted with procedure

    it is callous on the part of SBI or its Chairman and MD for not informing your right whereabouts to the hon court, if it had the address.

    if it had the address, you may file liquidated damages on the SBI in question sir.

  5. Balwant Taneja says:

    It is very informative and important issue raised by the author. Though the appointed members are having long standing at Bar and have experience of arguing before the Hon’ble High Courts and Tribunal, even then the training so imparted would give a new look and ideology to the new members at Bench. They will gain much more ethics, deliveering justice and disciplines of the court proceedings, They will learn more from wide experienced honourable members of the Tribunal and judges,

  6. It is very information and important issue raised by the author. Thouggh the appointed members are long standing at Bar and before the Hon.bke High Courts and Tribunal, even then the training so imparted would give a new look and ideology to the Bench. They will gain muchg more ethics and disciplines of the court proceedings and will learn more from wide experienced honourable members of the Tribunal and judges,

  7. wig sinbad says:

    dear miss/ sir,
    could you possibly provide the articles published in the ‘Diamond Jubilee Souvenir of Income–tax Appellate Tribunal in the year 2001’ which you have referred to in the article above.
    If these articles could be linked in the article I am sure many other persons like me will benefit by going through the articles by the eminent authors.
    with respects
    wig sinbad

    • u may get the article of the diamond jublee souvenir for it might be available in a web site of the relevant court or tribunal or the bar concerned, please search you might get sir regds.

      if you ask ITATonline, you might see, your request would face your note is under moderation yat might pop up sir.

      so better search yourself you may get in all probability, after all you do live internet age unlike in the past.

  8. after all supervisor is vital element as he is held responsible, after all you cannot make ten different people as supervisors, then you could never pinpoint any one as responsible is the principle of supervision, sirs

  9. Dipakkumar J Shah says:

    Absolutely correct. But there is no such provision in Law to Give exemplary cost on such Judicial Members at all. I have seen and observed in Gujarat High Court such cost are made ordered . But the reasoning is far behind to be investigated ? There is no such evaluating such orders. In High Court all orders are made under and in the name of Chief Justice. Is it gone under supervision?

    • Every order is made by government of india under president’s and in state under Governor’ name when so what is wrong to make under Chief justices of the relevant high courts sir?

      • Dipakkumar J Shah says:

        I mean there is no supervisory body to look in to and after the same. Only recourse if Appeal, Appeal and Appeal till you die . Verdict may come after you die!!! Many cases are urgently heard for !!!!! They are highly paid Advocates ?!!! This course is very ridiculous and should require a high thinking and thought also.

  10. CA Vinod Mehta says:

    Very nice & informative article sir.

  11. GYAN RANJAN SAHA says:

    The article could not have a day sooner. Something must be done get the new Membersfrom the prison of their prejudices and grime collected over the years in their former avatar.

  12. Good thought indeed.

    i used to think all these members were duly trained in functioning as judicial members, it not ir-repairable injustice would be caused to tax payers, if it were to happen the government under vicarious liability must meet exemplary liquidated damages to be paid to affected ax payers.

    i would go a step further the relevant jurisdictional high court periodically evaluate the ITAT judgments to ensure art 51A and art 256 of the constitution of india whether duly followed by the governments in place as also the ITAT members, for it is equally possible casual approach of the untrained members in judging would affect the lay taxpayers who might otherwise get badly affected ,

    so it is mandatory for govt to train the members duly in the art of judging, else govt would be help liable and the government must and should face though legal proposition under judicial review on government functioning.

    it is in the members own interest, now appointed, need to undergo the relevant training on their own as they hold onerous responsibility of judging as
    ITAT members, my humble suggestion to the new members they should develop a desire to be like manmohan singh vice president on ITAT bench, that must be their aim.

    • Dipakkumar J Shah says:

      Recent two judgments will show How Advocates also behave . Silently in my cases seen minutely something fishy from the case dismissal , from Advocates and Justices would come out from High Court of Gujarat for last 21 years and more. In open can not be written. Big names are there.

  13. b.s.waghela says:

    Very good informative Article by Dr. Shivram. Minister of Law and the Law Secretary should read this.

  14. Nem Singh says:

    Because of they have pressurized for joining and this is our Gov. accept their wish and give them reward by sharing chair with the bench and soon with bench. Rest you know batter why the Gov. did so.

  15. Dipakkumar J Shah says:

    This reminds me a case of PIL in Gujarat High Court against State Bank of India for the debit card charges taken all of a sudden by giving an advertisement in common all India News Papers , without taking any consent of the account holder , on an agreement of ATM Card which was free of charge!!. It was last at the time , conclusively,by statement only that some of the associates banks have/had not been served the copy of Petition being not correct address. The same address was written on the web of associate bank. Lastly when it was Before Hon. Justice Mr Y R Meena and other puine, it was told orally and in order that if it is not given in court within 2 weeks AUTOMATICALLY THIS PETITION STAND DISMISSED.Since then on the record of High Court it was pending!! All of a sudden after more than 6 years the Matter came up in August 2015 Before Hon. Justice Jayant Patel and Justice Mr.N V Anjaria and dismissed the case in my absence , where there is a provision in High Court Rules that where there is a party in person one must be informed about the case before putting to Court!!! What can be expected? What may be the course in this case one may note. This was pending case was intimated to Hon. High Court Gujarat and Also Chariman State Bank of India well before !!! They ahd been asked to give full address of the other Associate banks and also asked a question as to What is the correct address and had they received the copy of petition or not? No answers tot he question by Chairman State Bank of India .Silently State Bank of India , High Court office and advocates on record did this also in collusion!!!
    What more can be expected from Hon. Courts? A Senior Advocate as Now ACT Chief Justice High Court of Gujarat .

    • file a writ under art 226 r/w 227 aganist SBI for failing to inform the petitioner, when the hon court sought the correct address.

      Writ is a judicial review the court may reinstate the case when the very petitioner is the then petltioner seeking natural justice

      Every law or statute squarely subject to the constitution of india.

      please do not blame the high court justices.They only need to address your kind of issues, sir tks

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