| COURT: | Bombay High Court |
| CORAM: | M. S. Sanklecha J, M. S. Sonak J |
| SECTION(S): | 254(2) |
| GENRE: | Domestic Tax |
| CATCH WORDS: | apparant mistake |
| COUNSEL: | P.J. Pardiwalla |
| DATE: | November 24, 2014 (Date of pronouncement) |
| DATE: | December 5, 2014 (Date of publication) |
| AY: | 1999-00 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 254(2): ITAT must adopt a justice oriented approach and not defeat the legitimate rights on the altar of procedures and technicalities. Even a mistake by the assessee can be rectified | |
(i) It is a settled position in law that every authority exercising quasi judicial powers has inherent/ incidental power in discharging of its functions to ensure that justice is done between parties i.e. no prejudice is caused to any of the parties. This power has not to be traced to any provision of the Act but inheres in every quasi judicial authority. This has been so held by the Supreme Court in Grindlays Bank Ltd. v/s. Central Government Industrial Tribunal 1980 SCC 420. Therefore, the aforesaid principle of law should have been adopted by the Tribunal. It is expected from the Tribunal to adopt a justice oriented approach and not defeat the legitimate rights on the altar of procedures and technicalities. This is particularly so when there is no specific bar in the Act to correct an order passed on rectification.
(ii) It is fundamental principle of law that no party should be prejudiced on account of any mistake in the order of the Tribunal. Though not necessary for the disposal of this Petition, we express our disapproval of the stand taken in the impugned order that Section 254(2) of the Act are meant only for rectifying the mistakes of the Tribunal and not of the parties. The Tribunal and the parties are not adversarial to each other. In fact, the Tribunal and the parties normally represented by Advocates/ Chartered Accountants are comrades in arms to achieve justice. Therefore, a mistake from any source be it the parties or the Tribunal so long as it becomes a part of the record, would require examination by the Tribunal under Section 254(2) of the Act. It cannot be dismissed at the threshold on the above ground.
Impromptu (personal view)
A well reasoned judgment, more founded , rightly so to fit into our modern times, on sound principles of natural justice, as opposed to strict ‘legality’ or ‘THE LETTER’ but de hors “THE SPIRIT” of the law. May be, this is an instance in which the judiciary has chosen to be aided by the not-so-familiar Rule of “Updating Construction”
In a manner of speaking, the long standing soulful lamentations of a law legend, in the person of N A Palkhivala, are reflected in reported judgment.
To quote : –
“ The bewildering complexity of tax laws is coupled with the hyper-technical spirit in which the laws are being administered. The words, “the letter killeth” should be inscribed over the portals of every income-tax officer”.
To add: SHOULD THAT, PERHAPS, NOT BE SO INSCRIBED ALSO OVER THE PORTALS OF THE DRAFTSMEN OF OUR LAWS!
To Re quote:
” LORD REID, A NOTED JURIST OF YESTER YEARS, REFERRING TO A CERTAIN STATUTE, SAID THAT HE FOUND IT IMPOSSIBLE ”TO DISCOVER OR EVEN SURMISE WHAT THE DRAFTSMAN CAN HAVE HAD IN MIND.”
(Source: Nani’s published speeches/ articles)
The irony of the situation is that had the Tribunal allowed the rectification the Department would surely have challenged it before the High Court and the results would have been unpredictable.
indeed right view, hope soon tribunal correct itself i believe.
indeed right view, hope soon tribunal correct itself i believe.
indeed right view, hope soon tribunal correct itself i believe.
indeed right view, hope soon tribunal correct itself i believe.
It seems even elementary knowledge is missing in Tribunal means, is it fair governance by so called governments in place?
Is it not a must for the committee selecting tribunal members need to properly assess the competence of members?
What kind of judicial members and account members adore these honorable tribunals will be the question before all litigants before tribunals.
Will the litigants trust these tribunals at all for real sensible justice seems to have been done and justice is done?
Country seems going from bad to worse is the feelings i saw in a tribunal when i attend a month or so before when i saw account member suggesting to a litigant is it okay i remand back the matter to AO who committed some bad in law Notices he served and the same was confirmed by worthy CIT(A) perhaps ignorant of laws.
i wondered what is happening?
It seems even elementary knowledge is missing in Tribunal means, is it fair governance by so called governments in place?
Is it not a must for the committee selecting tribunal members need to properly assess the competence of members?
What kind of judicial members and account members adore these honorable tribunals will be the question before all litigants before tribunals.
Will the litigants trust these tribunals at all for real sensible justice seems to have been done and justice is done?
Country seems going from bad to worse is the feelings i saw in a tribunal when i attend a month or so before when i saw account member suggesting to a litigant is it okay i remand back the matter to AO who committed some bad in law Notices he served and the same was confirmed by worthy CIT(A) perhaps ignorant of laws.
i wondered what is happening?
I think it is high time constitutional courts penalize the government for their slackness of selections and in cases where miscarriage of justice is done by tribunals, under vicarious liability Ministry of Law which seems to control the tribunals as it seems Ministry of law is also some novice ministry.
Be it novice or not it is really unfair to meaninglessly affect the interests of litigants…i see Natural justice is not understood by these worthies, whereas the Natural justice is a sine qua non of any judicial system.
I think it is high time constitutional courts penalize the government for their slackness of selections and in cases where miscarriage of justice is done by tribunals, under vicarious liability Ministry of Law which seems to control the tribunals as it seems Ministry of law is also some novice ministry.
Be it novice or not it is really unfair to meaninglessly affect the interests of litigants…i see Natural justice is not understood by these worthies, whereas the Natural justice is a sine qua non of any judicial system.
i think it is high time the very Ministry of Law need to be fined exemplary as Ministry is called great Law ministry so exemplary fines are right kind of penalty to be imposed then only government machinery may perhaps work meaningfully, yet i doubt will the government machinery?
incidentally, procedures are not bewildering complexity sirs!
incidentally, procedures are not bewildering complexity sirs!