{"id":6665,"date":"2020-02-24T16:09:11","date_gmt":"2020-02-24T10:39:11","guid":{"rendered":"http:\/\/itatonline.org\/articles_new\/?p=6665"},"modified":"2020-02-24T16:09:11","modified_gmt":"2020-02-24T10:39:11","slug":"new-rules-for-appointment-of-tribunal-members-encroaches-upon-judicial-independence-and-also-is-non-compliant-with-the-guidelines-issued-by-the-supreme-court","status":"publish","type":"post","link":"https:\/\/itatonline.org\/articles_new\/new-rules-for-appointment-of-tribunal-members-encroaches-upon-judicial-independence-and-also-is-non-compliant-with-the-guidelines-issued-by-the-supreme-court\/","title":{"rendered":"New Rules For Appointment Of Tribunal Members Encroaches Upon Judicial Independence And Also Is Non-Compliant With The Guidelines Issued By The Supreme Court"},"content":{"rendered":"

\"\"Snehal Kanzarkar, a law student, has analyzed the new rules enacted for appointment of the Members of the Tribunal. She has argued that the new rules do not comply with the guidelines laid down by the Hon\u2019ble Supreme Court as regards the qualifications, experience and other conditions for appointment to tribunals. She has also claimed that the rules encroach upon judicial independence and are not in compliance with the law relating to separation of powers. She has requested that requisite changes should be made to the rules so as to make them compliant with the guidelines issued by the Supreme Court<\/strong><\/p>\n

Deliberate Defiance: Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020<\/a><\/u><\/strong><\/p>\n

The appointment of the Judges of Tribunal was regulated by the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 1963. The government replaced these rules with the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017<\/a> to incorporate changes in the qualification, salary, selection, appointment and other aspects of the appointment of judges to the ITAT and AAR. <\/p>\n

<\/p>\n

The 2017 rules were challenged in the Supreme Court and were quashed by the Court. (Rojer Mathew v. South India Bank and Another, <\/em>AIR 2015 SC 1571). The Court directed the Central Government to formulate new rules. Thus, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 were notified by the Central Government. This article analyses the changes in the above-mentioned rules in context of the Income Tax Appellate Tribunal and the Authority of Advance Ruling. <\/p>\n

A. Income Tax Appellate Tribunal<\/u><\/strong><\/p>\n

1. Eligibility Criteria <\/u><\/strong><\/p>\n

1.1. The eligibility criteria remain the same for the President and Vice-President across the 2017 and 2020 rules. While the 1963 rules and the 2017 rules have the same qualification requirements for a person to be appointed as a judicial member, 2020 rules have a modified the qualification criteria for the appointment of a judicial member. Earlier (1963 and 2017) a person who had held “judicial office” for 10 years was eligible. The 2020 rules have further narrowed the eligibility criteria. According to these rules, a person who has served as a district judge or additional district judge for 10 years. Any other judicial officer is not eligible under these rules. Secondly, a person who has practiced as an advocate for 10 years was qualified to be considered for this position (1963 and 2017). Now, the number of years of practice as an advocate have been increased to 25 years to be qualified to be considered for this position.<\/p>\n

1.2. A person who has practiced as an CA for 10 years was qualified to be considered for appointment as Accountant member (1963 and 2017). Now, the number of years of practice as a CA have been increased to 25 years to be qualified to be considered for this position. Secondly, a person who had been appointed as a member of Indian Income Tax service Group A and served for 3 years as ACIT was qualified to be considered for this position (1963 and 2017). But the qualification criteria have been increased in the 2020 rules. Now, a person has to be appointed as a member of IRS (Group A) and should have held the position of PCIT for 2 years and has been involved in adjudicatory, judicial or quasi-judicial work.  <\/p>\n

1.3. The modified criteria for the advocates and chartered accountants coupled with the short tenure and no scope of reappointment can be discouraging for the practicing advocates and CAs to leave their flourishing practice to become members for 4 years. Neither can they cannot practice before the ITAT thereafter, nor do they have reasonable chances of being appointed as High court judges. They do not have any incentive serve as a member in the ITAT. Further, the eligibility criteria for lawyers to apply for High Courts is 10 years practice in the High Court where a judge is appointed till the age of retirement. The standard being set at 25 years of practice for ITAT memberswith a short tenure of 4 years and no option of reappointment seems unreasonable. The minimum years of practice should be reduced back to 10 years. This will attract young lawyers to join the tribunal. <\/p>\n

2. Retirement Age and Tenure <\/u><\/strong><\/p>\n

2.1. President<\/u><\/strong><\/p>\n