Pr CIT vs. Grasim Industries Ltd (Bombay High Court)

DATE: April 18, 2018 (Date of pronouncement)
DATE: April 27, 2018 (Date of publication)
AY: 2001-02
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The CBDT should reconsider the practice of appointing retired revenue officers as panel counsel. While the retired officials have domain expertise and do render assistance, they lack the skill and conduct required to appear as an Advocate. They also lack the objectivity expected from officers of the court. The CBDT could consider holding of a training programme, where leading Advocates could address the domain expert on the ethics, obligation and standard expected of Advocates before they start representing the State. The CBDT should lay down a standard procedure in respect of manner in which the Departmental Officer/ Assessing Officer assist the Counsel for the Revenue while promoting/ protecting Revenue’s cause so that the Revenue’s Counsel are not left to fend for themselves

3 The learned ASG appearing on behalf of the Revenue points out that there was a misunderstanding on the part of its Counsel Mr. Chhotaray, on instructions received from the Assessing Officer. The ASG fairly states that it was a mistake which should not have happened. Henceforth, it is submitted that the Revenue would be more careful in respect of statements made in Court. In these circumstances, learned ASG requests that this matter be treated as closed.

4 We would have normally closed the matter, considering the events of 12th February, 2018 in our Court and as a bona fide mistake. However, it has been our experience that some Counsel for the Revenue, time and again argue matters before us only for the sake of arguing even when the issue stands concluded or without taking proper instructions in respect of facts as existing i.e. post the passing of the impugned order of the Tribunal. The focus is not on the facts involved in the matter but on arguing point of law. In fact, recently in the case of CIT v/s. JCW Logistic Park Pvt. Ltd., (Income Tax Appeal No. 613 of 2015) decided on 11th April, 2018, we had occasion to observe as under:

5:We are pained to record this most unreasonable attitude on the part of the Advocate for the Revenue, seeking to reargue settled concluded issues, without having obtained any stay from the Apex Court. This results in unnecessary wastage of the scarce judicial time available in the context of large numbers of appeals, awaiting consideration. We would expect …. an Advocate to act with responsibility as an Officer of the Court and not merely argue for the sake of arguing when an issue is clearly covered by the decision of a Coordinate bench of this Court and take up scarce judicial time. The Advocate must bear in mind that this a Court of law and not an University/ College debating Society, where debates as held for academic stimulation. We deal with real life disputes and decide them in accordance with the Rule of Law, of which an important limb is uniformity of application of law. This on the basis of judicial discipline and law of precedents.”

The present insistence on the part of Counsel to argue the appeal, notwithstanding the fact that the opposing Counsel stating that an order has been passed on remand, making question (iii), now redundant. This conduct on the part of the Counsel, is a continuation of treating the Court of Law as place to score debating points. The only reasonable things to do in the above circumstances, would have been to take time to check and not insist that he has instructions twice over and contend that no order has been passed.

5 Moreover, if this conduct is permitted at the bar, then it would become a practice for an Advocate to make a statement, on instructions and thereafter, when the events do not turn out as desired by litigants, the Advocate will turn around and state that he had misunderstood his client.

This cannot be a norm. We accept statements made by Advocates on behalf of their client without demur, as an Advocate of this Court, we proceed on the basis that he would be more then a mere spokesman for his clients. Thus, every statement made by an Advocate on facts, affecting the case, would be made with responsibility after checking the fact.

We are constrained/ compelled to take note of and pass this order as this arguing for the sake of arguing without taking into account the factual context is happening too often, even after we have made numerous attempts to impress upon the Advocates who appear for the Revenue, that they are appearing for the State and must act with responsibility. Thus we cannot now continue to ignore this manner of conducting the mattes on behalf of the Revenue before us.

We have on numerous occasions attempted to impress upon the Advocates of the Revenue that this manner of conducting the matter does not behove the State, but to no avail. Therefore, the message now needs to be sent, loud and clear that the Advocate must be more careful whilst making statement on instructions, as the same are accepted by the Court, without question.

We, shudder to think, the day when in the carriage of judicial proceedings we will not be able to accept a statement made by the Advocate and would have to always insist that the statement be supported by an affidavit of the client. This would result in disruption of the administration of justice and only result in further delay. The Advocates should realize that domain expertise alone will not justify lapse in the standard of conduct expected of an Advocate.

6 We also note with dismay that the affidavit dated 23rd April, 2018 of the Assessing Officer stating that as no questions were asked about giving effect to the order of the Tribunal dated 22nd October, 2014 by the Counsel for the Revenue, therefore, there was no occasion to discuss the same.

This to say the least, is not expected on the part of the Assessing Officer as he is the person expected to brief and instructs the Revenue’s Counsel. It is his primary duty to upgrade the Counsel with regard to all facts involved in the matter, more particularly facts which may have transpired after the passing of the impugned order of the Tribunal.

The Assessing Officer must appreciate that as the Officer of the State, he is the client. Therefore, the Assessing Officer does not meet the Revenue’s Counsel as a witness who is required only to answer the questions posed to him by the Advocate. It is, indeed the job of the Assessing Officer to inform Advocate appearing for the Revenue of all facts, so as to ensure that justice is done. We have observed that when matters are taken up, the Counsel for the Revenue do not have any assistance on facts available to them as none from the Revenue, is present.

In fact, it appears that the Officers of the Revenue believe that once the matter is in Court, it is the sole responsibility of the Counsel for the Revenue to protect the interest of the State and their responsibility comes to end. This cannot be.

7 We understand that while appointing panel Advocates for the Revenue, the requirement of having practiced for some number of years is not insisted upon in case a person has domain expertise, such as retired Officers of Revenue. If this indeed be the practice, it would, in our view, need revisiting the same. This is so, as the skill and conduct required to appear as an Advocate, are honed by working in the chambers of an experienced Advocate, particularly that he is part of a system which seeks to ensure that Justice is achieved, beyond the cause of the client. It is indeed for the CBDT to decide and take appropriate action. Undoubtedly, these retired Officers do have domain expertise and do render assistance.

However, the conduct and role of an Advocate is much more than that of being an expert in tax matters. This has to be realized by the domain expert Advocates. An Advocate must have a broader vision and look upon themselves as Officers of the Court, assisting the Court to do justice and not right or wrong, my client is correct as now done by some of the Advocates for the Revenue. In fact, in this context, we had earlier also in 2015 had occasion to observe in Director of Income Tax (International Taxation) v/s. Credit Agricole Indouez 377 ITR 102, as follows:

“ The manner in which sometimes the unmeritorious appeals are persisted by the Revenue, reminds us of the famous observations of Mr. Justice Crompton in R. V. O’Connell (1844) 7 ILR 261 @ 362:Another doctrine broached by another eminent counsel, I cannot pass without a comment. The learned Counsel described the Advocate as the mere mouthpiece of his client, he told us the speech of the Counsel was to be taken as that of client; and, thence seemed to conclude that the client only was answerable for its language and sentiment. Such, I do conceive, is not the office of the Advocate. His Office is a higher one. To consider him in that light is to degrade him. I would say to him as I would say of a member of House of Commons – he is a representative, but not a delegate. He gives to his client the benefit of his learning, his talents and his judgment, but all through he never forgets what he owes to himself and to others. He will not knowingly misstate the law, he will not willfully misstate the facts, though it be to gain the cause for his client. He will ever bear in mind that if he be the Advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has a prior and perpetual retainer on behalf of the truth and justice; and there is no Crown or other licence which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer.”

In this case, the Counsel is appearing for the State. The responsibility of an Advocate appearing for the State is much greater to ensure that justice is done and common people/ citizens are not harassed. This conduct on the part of the Revenue’s Counsel of not taking proper instructions and arguing matters as they perceive a debatable point involved, does lead to undue harassment of the tax payersRespondent.

8 We have for a long time, taken into account that many of these are fresh entrants to the bar and in due course, would learn the standard expected of an Advocate. However, to our disappointment, many of them are refusing to learn. Therefore, the CBDT could consider holding of a training programme, where leading Advocates could address the domainexpert on the ethics, obligation and standard expected of Advocates before they start representing the State. This is only a suggestion and it is entirely for the CBDT to take appropriate steps to ensure that the Revenue is properly represented to serve the greater cause of justice and fair play.

9 In any case, we would expect the CBDT to lay down a standard procedure in respect of manner in which the Departmental Officer/ Assessing Officer assist the Counsel for the Revenue while promoting/ protecting Revenue’s cause. We find in most cases, atleast during the final hearing, Revenue’s Counsel are left to fend for themselves and that even papers at times are borrowed from the other side or taken from the Court Records. If the mind set of the Revenue Officer changes and they attend to the case diligently till it is disposed of, only then would it be ensured that the State is properly represented.

10 We direct the learned ASG and the Registry to forward a copy of this order to the Chairman, CBDT. We would expect the learned ASG to interact and advice the CBDT in respect of the issues referred to herein above to enable proper representation by the Advocates on behalf of the Revenue.

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