Save the Temple of Justice!

The author passionately calls the Tribunal a “Temple of Justice” and the Bench and the Bar its’ “Trustees”. He gives out the clarion call that the onus is on the Bench and the Bar to preserve the dignity, sanctity and purity of this Temple

1. The Tribunal is the final fact finding authority and if it wrongly decides the matter the assessee is virtually left with no remedy. An appeal to High Court can be only on substantial question of law. Litigants before the Tribunal are of two categories, the aggrieved assessee and the Government. But the objective of filing appeal is different for both categories. An assessee rings the bell of justice before the Tribunal, only when the Assessing Officer makes additions which are not in accordance with law or facts. Appeals before the Tribunal involve, time and money, both of which he can ill afford to squander. Before doing so he makes a careful cost benefit analysis and elects to appeal only when the stakes are high and there is reasonable chance of success. Assessee is not an academician and does not derive any pleasure in obtaining a judgment for the sake of publicity or for laying down a legal precedent. The Government through different functionaries, on the other hand, files appeals, in most of the cases mainly out of fear of being questioned by superiors as to why appeal was not filed. Secondly, the Government does not have to pay any appeal fees. Thirdly assuming the appeal is dismissed there is no accountability of the officers to explain as to why such appeal frivolous are being filed. Considering the above scenario, the Members of the Tribunal have a greater responsibility. While hearing the appeals they are not merely adjudicating on the issues before them but they are invariably deciding on the fortune of the assessee. Whereas, one wrong decision against an assessee may ruin his life and relegate him to the position of a pauper, the same against the Government may affect the coffers of the Government only to an extent of a drop in an ocean. Hence, the Tribunal Members have greater responsibility to the citizen.

2. Pendency of appeals before the Income Tax Appellate Tribunal has reduced from 3,00,000 to 70,000. Now the assessee can get the justice from the final fact finding authority in some of the zones within six months of filing the appeal. Even in Mumbai, the appeal where the assessed income is less than Rs. 5,00,000 is heard within six months filing the appeal. Tribunal has been able to reduce the pendency by innovative method of clearing the old appeals and disposing of the small matters, covered matters etc. expeditiously. For reducing the pendency, the contribution and sincere efforts of the President, Vice Presidents, Members, Staff, Contribution of the Bar and Departmental Representatives, deserves to be appreciated.

3. The Hon’ble Apex Court in Mangat Ram vs. State of Haryana (www.itatonline.org) has held that, the Courts and Tribunals must pass final orders, only after recording reasons in support of the order. The Hon’ble President of ITAT has issued the guidelines to the Members to take in to consideration the various factors while passing the orders. The said guidelines are reported at AIFTP Journal – July, 2008 issue page No. 35 as well as at www.itatonline.org. If the Hon’ble Members strictly follow the guidelines, there may not be any scope for Miscellaneous Applications either by the assessee or by the department. In cases, where the guidelines are not followed, it is the duty of the professionals to bring to the notice of the Hon’ble President so that the remedial measures can be taken by the Hon’ble President.

4. At “All India Conference” held at Delhi on behalf of the Federation, the following suggestions were made to the then Advisor to Hon’ble Finance Minister:– One of the very important provisions introduced in the Maharashtra VAT legislation is the provision for obtaining Advance Rulings on the interpretations of any provision of this Act, Rules or Notifications in respect of a transaction proposed to be undertaken by any registered dealer even though any question relating to the said provision has not arisen in any proceeding. The Advance Rulings will be given by the Bench constituted of three members of Sales Tax Tribunal, Senior Practitioners nominated by the President of the Tribunal and Officer of Sales Tax Department not below the rank of Jt. Commissioner nominated by the Commissioner of Sales Tax. The Federation has made an appeal to the Union of India to introduce such provision under the Income-tax Act and Central Excise, Customs & Service Tax for all residents, which can reduce the litigation. Federation has also made suggestions that, the Income-tax Act may be amended and the orders of the Commissioners under sections 264, 273A, appeals against the orders under section 179, reopening under section 148 may be made appealable before the ITAT. This will save substantial time of High Court.

5. We are happy to note that all judgments of the ITAT Mumbai and Delhi are published in www.itatindia.com however, the citizens are not able to download from the website. We desire that similar to Bombay High Court and Apex Court all orders of the ITAT may be published in the official site of ITAT so that the citizens can access and download from the website. This will help for better representation before the Tribunal.

6. It may be heartening to note that the Commissioner of Sales Tax of Maharashtra taking into confidence of Sales Tax Practitioners Association of Maharashtra has prepared a road map for the Sales Tax administration and computerization of sales tax assessment and procedure. We desire that the ITAT also should prepare a road map for the computerization, so that the assessees and department is able to file an appeal by e-mail, notice of hearing and orders can be sent to the concerned parties by e-mail. It may also possible know the issues pending before various benches of ITAT, which may help for grouping of matters and speedy disposal of matters.

7. On the occasion of 40th anniversary of the Income Tax Appellate Tribunal, Late Shri N. A. Palkhivala in his article stated that “There is no doubt that over the period of 40 years, the Tribunal has been manned by some very able men. Quite a few of them would be fit to adorn any High Court Bench. No other Tribunal in India has won such well deserved popularity and confidence of the public as the Income Tax Appellate Tribunal.”

8. We are of the considered view that Bar and the Bench has to pay a positive role to preserve its Dignity, Sanctity and Purity. It is worth appreciating that the, ITAT Bar Association, Mumbai has constituted a three members committee to look in to any suggestion to maintain the honour and dignity of the Income Tax Appellate Tribunal. If other Tribunal Bar Associations also takes a positive step, the same will definitely help to maintain the glory of the mother Tribunal. The above suggestions are objectively in the interest of Mother Tribunal which is considered as one of the finest institutions of our country, even today. We wish all our readers, A Happy Diwali and Prosperous New Year.

Dr. K. SHIVARAM
Editor-in-Chief AIFTP
(Reproduced with permission from the AIFTP Journal – October 2008 issue)