Dear Judges, Thanks For The Strictures But What About Some Follow-Up Action?


The author, an eminent senior advocate, expresses gratitude at the proactive role played by Courts in seeking to redress the inefficiencies of the department. However, while the strictures do shake the department out of its’ reverie for some time, the effect does not last long. The author suggests that a monitoring mechanism should be set up and the top brass of the department hauled up for non-compliance of the directives. The author has also identified the problem areas and suggested simple and cost-effective solutions to prevent the department from being on the wrong side of the law

As on 15-2-2014, the pendency of appeals and references before the Bombay High Court was more than 9,700, which includes 1,850 old references, 4,700 appeals admitted and pending for final hearing and 3,150 pending for admission. The Income-tax Appellate Tribunal Bar Association has made a representation to the Hon’ble Chief Justice of the Bombay High Court to constitute at least two tax Benches. We wish to express our gratitude to the Hon’ble Chief Justice for being kind enough to accept the request and constituted three tax Benches.

It is however very unfortunate that when the old matters were kept for final hearing on 4th March, 2014, counsels (for the assessee and for the Department) were not ready and the matters were required to be adjourned. The Hon’ble judges have passed an order in the case of Thermax Babcoock & Wilcox Ltd. v. CIT (Bom.)(HC) observing as follows:

“We have noted that the final hearing Board consists of all appeals of 2002. First two matters have been adjourned by us only because the department or advocate for the appellant sought accommodation. They did not either havepapers or were not ready with the case. Such state of affairs will not be tolerated hereafter. In the event, the counsel engaged by the department is absent without a justifiable or reasonable cause we will invariably impose costs and to be paid by the counsel personally. Equally, we would proceed in his absence. In the event, the appellant or his advocate is absent, we will proceed to dismiss the appeal for non-prosecution. Thereafter, no application for restoration of the appeal will be considered unless the appellant makes out sufficient cause for absence.”

In earlier also number of occasions the departmental references were sent back un answered as the department has not properly prosecuted. E.g. in CIT v. S. M. Mehata (1988) 170 ITR 582 (Bom.)(HC), the Bombay High Court declined to answer the reference as the Commissioner failed to give requisite information. In CIT v. Union Manufacturing Co. Ltd. ITR No. 376 of 1979 dt. 17th June 1993, the court returned reference unanswered stating that despite long lapse of 14 Years the respondents have not been served. Similar orders were passed in CIT v. Shri D. M. Shinre (HUF) ITR No. 280 of 1979 dt. 6th July, 1993, CIT v. Patel Brothers ITR No. 497 of 1979 dt. 5th July, 1993, CIT v. Estate of Shri P. A. Advani (Decd.) ITR No. 499 of 1979 dt. 17th June, 1993.

In CIT v. American Bureau of Shipping ITA No. 346 of 1988 dt. 25-7-2005, the Bombay High Court dismissed the department’s reference application as the department had not served the paper book to the respondent even after 17 years of filing of reference. (AIFTP Journal –August-2005 P. 10) Number of matters referred to Bombay High Court under section 256(2) has been dismissed as the department has taken any initiate to comply the procedural requirements. Who is accountable?

In early days, with one advocate on record and many lawyers on the panel of the tax department, there was better coordination and efficiency in handling litigation issues. However, under the present system, each Commissioner of Income-tax has a different lawyer and vakalatnama is being filed by different lawyers. It has also been observed that the concerned lawyers may not even be on the panel when the matter comes up for final hearing after many years which results in avoidable delay in disposing off the cases. Every such adjournment results in precious time of the Court being lost and tax payers’ money wasted on unproductive purposes.

We are of the opinion that this situation can be improved if the entire work of filing of vakalatnama is outsourced to a law firm. If the tax administration in Mumbai does not take any remedial measures soon,they may lose good matters due to inadvertent procedural lapses. Also, the fees for filing vakalatnama and appearing on behalf of the Department deserves to be increased. The Department accounts for more than 60% of all the tax appeals filed in the Bombay High Court.

We have made representations from time and again to the Government to constitute a tax litigation management cell for the Department to monitor cases before various courts. If the above suggestions are implemented, it may further enhance the quality of representation of tax matters on behalf of the Department. It is also worth appreciating that quality of representation before the Tribunal is are of much more organised.

The Rajasthan High Court in CIT v. Ram Singh (2014) 266 CTR 122 (Raj.)(HC) set aside a bunch of 83 appeals and made certain strongly remarks against the quality of these orders of the Tribunal. The Court noted the observation of Karnataka High Court in CIT v. Gauthamchand Bhandari (2012) 347 ITR 491, 499 (Karn.):

“(a) We cannot avoid observing that of late the quality of orders that are come out from the Tribunal in exercise of its appellate power under section 256 of the Act are found to be wanting and in many respect and many a times the orders are very prefecture, even non-speaking orders and has no correlation to the fact situation that prevails in a given case.

(b) We also notice that the members of the Tribunal have developed an unhealthy habit of quoting totally unrelated judgments which are not applicable at all to the facts of the case, to pass orders not otherwise sustainable on facts or in law. We strongly deprecate such a tendency on the part of the members of the Tribunal, which is quite naturally a professional Tribunal comprised of expert members, one member from the Revenue side and another member from the accounting side, with considerable experience in their respective fields and to whom we can attribute expertise. We feel sorry that the confidence posed by the Legislature is not being justified by passing orders that are outcome from the Tribunal now-a-days;

(c) It is high time the method of recruitment to the Tribunal is also reviewed by the authority concerned and at least henceforth it is ensured that the members of some standing, integrity and competence are put in place as members of the Tribunal and not all and sundry;

(d) The Legislature, particularly the Union Parliament may also take note of such tendency on the part of the Tribunal and ensure for suitable legislative measure so that the purpose and the object with which such Tribunals are constituted really sub-serve not only the interest of aggrieved assessee but also to ensure that the Revenue’s interest is not simply scarified or jeopardized by errant members;

(e) Registrar General of this court is directed to send copies of this judgment to the Law Commission of India, Secretary to Department of Revenue, Ministry of Finance,. Government of India, Secretary to Government, Ministry of law and Parliamentary Affairs, Government of India and the Central Board of Direct Taxes, New Delhi.”

This order was passed on September 13, 2010. It would be interesting to find out whether any discussion was held in the Ministry of Law or in the Tribunal to improve the overall functioning of the Tribunal. This issue also assumes importance in light of the interview process for appointment of 45 new Members of the Tribunal being underway.

It is also worth appreciating that there are a number of Members of the Tribunals who draft their orders very well and deserves to be appreciated for the quality of orders. Professional organisations can thus play a proactive role in this regard.

While the Rajasthan High Court’s views in the above case are not off the mark, it is also worth appreciating that there are a number of Members of the Tribunals who draft their orders very well. It is also apropos to quote Shri H. R. Gokhale, Union Law Minister [Lok Sabha debates (18th Session) On the Constitution (42nd Amendment) Bill]: on 1st November, 1976

“I have got an example of the Income–tax Appellate Tribunal. We have judicial members, we have the accountant members. The Tribunal is functioning extremely well and even those people who have gone before the Income–tax Appellate Tribunal have told me and have spoken on the public platform that the Income-tax Appellate Tribunal as it is constituted today, is the best example to show how the Tribunals if properly constituted, can create confidence. I can say that the Income–tax Appellate Tribunal’s decisions are rarely interfered with by High Courts and the Supreme Court because the quality of their work has been found to be sufficiently good as to inspire confidence.”(Source Lok Sabha Debates (Eighteenth Session) Fifth series Vol. LXV. No. 7 (PP. 122-123) Souvenir-1981 – 1 August 1981 P. 97 – Income-tax Appellate Tribunal (Four Decades) Bar and Bench may have to play a proactive role to preserve the glory of ITAT as one of the finest institution of our country.

Delhi High Court in A. T. Kerney India Pvt. Ltd. v. ITO (Order dated 8-4-2014 has passed strictures against the Assessing Officer for recovering tax without following the due process of law. The Court also forwarded the copy of the judgment to the CBDT for taking appropriate measures. Time and again, we find a number of orders being sent by the Courts and Tribunals to authorities concerned for taking appropriate measures.

Unfortunately, there is no mechanism under which one can find out whether any remedial measures are taken by the authorities concerned when Courts pass such strictures. Possibly, by the use of Right of Information Act one can find out whether any such remedial action is taken. A PIL can be filed by the professional organisations in respective High Courts for the enforcement of such orders.

The ITAT Bar Associations’ Co-ordination Committee of the All India Federation of tax Practioners are proposing to make suggestions to the Ministry of Law and Justice for better administration of the Tribunal which is the final fact finding authority. Issues to be discussed in the proposed meeting are published in the journal. Readers may send in their views and suggestions. Your valuable suggestions may help to bring better tax laws and better administration of justice.

Jai hind

Dr. K. Shivaram

Editor-in-Chief, AIFTP Journal

Reproduced with permission from the AIFTP Journal, April 2014

22 comments on “Dear Judges, Thanks For The Strictures But What About Some Follow-Up Action?
  1. I completely agree that there should be a PIL before SC , after RTI applications to the various departments HC sent their observations and within 30 days of filing RTI applications are filed that the departments including ministers concerned should with in 30 days need to respond with their replies as already the court’s observations are before these departments languishing in their offices so sec 80 of CPC need not be applicable like in Notices to governments concerned – here only the central government is involved.

    I would also like a sec 80 CPC Notice is served on the Secretary UPSC New Delhi, which selected such inert nobles ( persons ) by way of recruitment, so also to the Ministry of HRD as also the minister , to get their observations why these so called expert members of ITAT so badly fared, what were the lacunae in the selection process to be identified as these worthies wh caused innumerable problems both to tax payers as also government which wasted tax payers moneys in the remuneration paid to these members since the date they were hired as probationers in the department concerned and the ministry of HRD has to fix the responsibility on the concerned persons as also vicarious liability be fixed meaningfully and also the ministers need to answer why they did not table before parliament for discussion in the parliament before both houses.

    Similarly they need to answer why they did not mention this as an item for reference before Law commission concerned and like wise questions may get raised and the ready made replies also find part of the exhibits to the petition to be to make make the judicial work meaningful as people of India should not lose faith on judiciary , after all ITAT as an appellate tribunal is part of judicial management by the virtue of 42nd amendment to the constitution in the light of mr HR Gokale’s observation as a Law ministry on the efficacy of tribunal .

    When so why the new breed of members at tribunal accounted so badly leaving the best members from the rotten slot and how government of India is going to be accountable need to be emphasized by PMO.

    All these necessary exhibits would be vital for adjudication on the issue, besides also examine the confidential records of the various officers of Revenue as also accounting be reviewed and reported on their character, integrity etc are well analyzed lest again rot not allow to infest the tribunals again so that a comprehensive PIL need to arise as a lot of tax officers as also CIT(Appeals) to be examined in their understanding of tax laws by a stiff UPSC departmental tests and mandatory abilities on the commissioners to be or is today so that tax payers confidence need necessarily be restored without any kind of judicial failure, not to be hampered ;

    All these are vital, new crop of officers too are really made accountable to public apart from, to the parliament and the government, as court observation on some members is indeed damaging as these members seem to have cited wrong and unconnected citations in their judgments is indeed very sad spectacle, as there is misunderstanding of law and application of facts is again a bitter charge seen in the judgements, so all members of parliament are accountable to public for their failure in properly functioning to the best interests of the ruled as every citizen need to be a good citizen including all members of parliament, as also all public servants, as good citizen means rights imply their duties too to each other is the basic feature of any constitutional democracy, as no arbitrariness is permissible in terms of Art 265 taxation that shall be as by due process meaning nothing in taxation should be arbitrary in any way!

    thus i say there is need of conscious accountability in every public servant so too every legislator in parliament or else where. All are accountable.

    that is called Dhamashetre Kurushetre that is dharma fights on the war field to provide real doctrines of law which are nothing but a clear contractual obligations to one another.

    When limitations are prescribed on the public servants that is the Lashmana rekha on the officer concerned, and none can cross arbitrarily is an essential part of contractual understanding of laws called dharma!
    Breach here is also a serioys breach and indeed punishable by exemplary penalties if officer failed, as no officer can afford to fail, as it is said, every public person supposed to apply laws need to know first what are his basic limitations on him and if he fails to discharge that obligation may even be discharged from service absolutely for his absolute failure to understand his limitation prescriptions which is an estopel on him !

  2. Do we really understand what Mr. Parasaran as SG on his last day as SG, said in an interview about tax department to Mr. Law?

    u cannot indefinitely prolong a case, just because department did not give details to argue, if it fails it has to suffer is called justice!

  3. S PRAKASH says:

    You are right even if the representatives quote the HC and SC orders the officers will not follow the same and cause unnecessary trouble to the assessees. Even if we write to the Board, the CBDT will not even care for such letters and do not even answer them.

  4. Prashant says:

    It would perhaps be a fallacy to proceed on the basis that every stricture is as justified as it is being made out to be. The irony of judicial system is that each tier of this system is increasingly very harsh in words on the levels below as also on the administrative authorities working under it. Many a times these harsh words are justified but many a times such harsh words may not meet approval of even a layman.

    It would be worth the trouble to read the following remarks about context of these strictures elsewhere on your website:

    The relevant extracts are as follows:

    “These observations (i.e. strictures in Ram Singh’ case ) are actually made in the context of a Bangalore bench decision in the case of Gautamchand Bhandari Vs DCIT (95 TTJ 228). As to what was held by the Tribunal in this case, the head notes of the decision state as follows:

    “Held :

    The amount was advanced during the financial year relevant to asst. yr. 1999-2000. The search was conducted on 19th July, 1999. Thus the due date for filing return of income for asst. yr. 1999-2000 has not expired. Prior to search, during the course of survey under s. 133A itself the assessee has declared certain income as undisclosed income and already offered to pay tax thereof. It is not the case that the assessee has retracted his statement. On the contrary the assessee has included the said undisclosed income declared during the survey in his return for asst. yr. 1999-2000. Thus in the present case it is to be seen whether the income declared during the survey operation under s. 133A can be considered as undisclosed income in the search conducted subsequent to survey. Once the assessee admits any income as undisclosed income during survey it does not retain the character of undisclosed income in the search under s. 132. To compute the undisclosed income under s. 158BC, the same is to be based on material found during search conducted under s. 132 only and not survey conducted under s. 133A. The material should be found during search. The confirmation of undisclosed income declared during survey loses its character as ‘undisclosed income’ during search, as it is no longer undisclosed thereafter. Once the assessee has unequivocally disclosed certain income during survey under s. 133A and so long as it is not retracted, it cannot be said that the same income is found during search conducted under s. 132. What remains after the declaration during survey under s. 133A is appropriately taxing the same only. This was done by the AO in regular assessment for asst. yr. 1999-2000. Since there is no material to hold that the amount declared during survey would not have been disclosed in the return of income, the same cannot be considered as undisclosed income under s. 158BB and accordingly taxed under s. 158BC. Addition of Rs. 50 lakhs is required to be deleted.—Smt. Sivabala Devi vs. Asstt. CIT (2004) 88 TTJ (Mad) 955 : (2004) 88 ITD 333 (Mad) and CIT vs. Tarsem Kumar (1986) 58 CTR (SC) 129 : (1986) 161 ITR 505 (SC) relied on; L.R. Gupta & Ors. vs. Union of India & Ors. (1992) 101 CTR (Del) 179 : (1992) 194 ITR 32 (Del) distinguished.”

    Hon’ble Karnataka High Court did not approve this school of thought. Their Lordships were of the view that it is only when assessee is maintaining the books of accounts that such a benefit can be given and that, by implication, even if income is already declared in survey proceedings before the search, it can be treated as undisclosed income. Justice DV Shylendra Kumar, speaking for the bench, observed as follows:

    “As per the statutory provision, the exclusion of the income from assessment of block period, if it is attributable to the part of the accounting period of the year in which the search has been conducted, it is possible only of and only when the assessee has produced before the assessing officer such of his books of accounts which are maintained in the normal course of business activity of the assessee, wherein is recorded the entries indicating the generation of income to the part of the accounting period and then only to exclude that part of the income from that segment of accounting period and allow the assessee to file a return excluding the income in the later assessment and not otherwise. ……….. Therefore, this appeal is to be allowed against the order of the appellate tribunal being without any rhyme or reason and not in consonance with the statutory provisions and not even in consonance with the material on record, but being one passed more in confusion and misunderstanding of the facts and law ………”

    In effect thus an income which was already declared in survey under section 133A, immediately preceding the search operation, was held to be ‘undisclosed income’. Justice Shylendra Kumar did not stop there. He found the decision of the itat so perverse that he proceeded to make the observations that you have reproduced in the summary of Rajasthan High Court decision on your website.

    Hon’ble Rajasthan High Court just took note of the above observations, reproduced the same and just left it at that. No directions to the Government, no directions to the Registrar General and not even an endorsement of the views of Hon’ble Karnataka High Court.

    Your readers are very seasoned people. Let all these facts be before them and let them also think how to take the words of Justice Shylendra Kumar (Retired) in the context in which the comments were made. Incidentally, many of his famous judgments, including in the cases of CIT Vs Samsung Electronics Ltd (320 ITR 209) and CIT Vs Sonata Information Technology Ltd (232 CTR 20), were later reversed by Hon’ble Supreme Court, such as in GE India Technology Centre Pvt Ltd (327 ITR 456), but without any personal comments.

    Let me make my point once again. The remarks quoted by you are not in the context of Jaipur bench, nor even in the context of a non-speaking order but in the context of a well thought out decision, in favour of the assessee, which many tax experts would have believed to be, until the time Hon’ble Karnataka High Court’s judgment in the case of Gautamchand Bhandari (supra) and many such experts outside the jurisdiction of Hon’be Karnataka High Court would believe even today, a reasonable, even if technically incorrect- in the light of Hon’ble Karnataka High Court’s view of the matter. After all, an income, which is already in the knowledge of the income tax department before the search operation had commenced, may not be viewed by many subject experts as ‘undisclosed income’ for the purposes of block assessment. The Tribunal may have erred in coming to this conclusion but few would be takers for the proposition that the error was such a Himalayan blunder so as to invite strictures of this nature but then Justice Shylendra Kumar was known to be a tough judge with radical thinking and unsparing attitude for all. Let us treat the remarks in this context.

    ITAT may not be perfect, it may not even the best, you may have grievances against certain individuals, but as an institution, it has done a reasonable job and its best is certainly not behind it. Your grievance is not against what ITAT is doing but it is against, what you think, ITAT could have done even better. Well, everyone traverses through tough patches in its life and ITAT is traversing through one of its toughest patch. In this moment of crises, itatonline should contribute to strengthening the ITAT and instead of exposing what is wrong with the ITAT, concentrate on what is right with it and how ITAT can do its work even better. As Germans say, ‘you must empty-out the bathing-tub, but not the baby along with it.’ The way itatonline has espoused the cause of the Tribunal bashing, I am afraid, this is precisely what you may end up doing.”

    When I read both these decisions, I was a different person. I cannot join this chorus now. Why don’t you invest 10 minutes in reading these decisions ? Take by word, you will not be disappointed and your faith in and respect for the ITAT will only increase.

  5. devadasan says:

    Why the High Court is taking so much time in taking up cases. One fine morning the High Court decides to hear all the 2002 cases and want the department to produce the records immediately. In between so many officers have changed and to locate the case records the Court should give reasonable time. The delay of 12 years is attributable to judiciary only and not due to the department. The Judiciary is to be blamed for the delay. Instead of that, most of the time it accuses the poor Assessing Officer for the problems created by their (courts) inefficient system!

  6. April 19, 2014
    HON ITAT-Org and its Honorable Members:
    ITT (Innate Think Tank) knows: use of judicial discretion to act under the law thus with jurisdiction in law insures VALIDITY thus 100% legally valid and enforceable Judgments. ITT prevents LEOs (Law Enforcement Officials) from being convicted as Trespassers-in-law upon Motion being made as recommended in posts by Lalit K Jain Esq.
    ATT (Acquired Think Thanks) know: use of judicial discretion to act above the law thus without jurisdiction in law insures NULLITY thus 100% legally void and unenforceable Judgments. ATT insure that LEOs (Law Enforcement Officials) are convicted as Trespassers-in-law upon Motion being made as recommended in posts by Lalit K Jain Esq.
    ITATOrg is a SON (Social-Organizing-Network). CAN SON HELP?
    CAN SON file a Friend of the Court Motion?
    Thanks as before. Please follow prior posts when you all change your minds.
    Law Offices of Lalit K Jain Esq., India and US Supreme Court and NY State Courts.

  7. Nitn K. Parekh says:

    Like in every other system in India, quality in judicial system too has come under cloud. Whether it is the law (Acts), lawyers, bureaucracy or judiciary, “accountability: needs to be built into every system. Fear of law will come only when transgression of law is dealt with sternly and speedily.

    Further, in taxation, there is need to review and reduce the layers of appeal. It is also necessary to create a “Think Tank” in the Taxation Departments to verify the eligibility for appeal of each case and it should be again held responsible for the advice rendered.

    With regard to administrative issues encountered by assessees, it is better that the “Ombudsman” system is adopted to reduce the litigation as also to help the assessee with speedier decision at almost no cost.

  8. The reason for the enormous litigation is lack of knowledge act, principles of system of accounting, etc., at the assessment level and audit level ambiguous provisions of law misinterpretation of laws and misconceptions of rules and regulations and trade customs etc. The litigation could be stopped if we find honesty everywhere from the assessment level to appellate level.

  9. Even now i do not trust any tribunals as they are not lie regular high courts or supreme courts, as in these tribunals most get sinecure offices out of political patronages that is creating more and problems unless the public servants are really of impeccable integrity , they would not perform justice per constitutional laws, that is the problem, see even when judges retd are given sinecures most fall in the trap of political patronage that is a menace to the citizens of india, that way one need to look, see after striking down schedule 9 which created several problem to citizens, so then CJI Y K sabharwal in late. R. Coelho (Legal heirs) v st of R TN, in jan 2007 by his landmark judgement menace of schedule 9 was scuttled;

    Else today every mad laws of governments may become a part of schedule 9 and would have sank Indians, as no politician is trustworthy as he believes in quid pro… arrangements, sorry for my comments.

    so my suggestion is let public servants retd become trustworthy to citizens, then probably things may improve n credibility quotient may improve to day no one is trustworthy in gobvernments;

    see the other day at pune how a EVM machines only showed congress at many poling booths, tat resulted in doubting even poling officials and i recommended many booth officers should be made liable personally as also even district collectors or commissioners any where in india, as today politicians treats so make public servants are very high and dry, that forces poor public servants to get along with political big wigs, see Ajit Pawar / Mulyam singh yadhav statements how threatening when they could behave with voters is it difficult for them to misbehave if u do not this kind! so sad spectacle looms large;

    so i cannot rate so called National tribunal unless it could prove years like good ITATs which got appreciation from very appex court for their discharge of functions !

    i do not mean any thing bad for any one but say only what is happening today!

  10. April 18, 2014
    The sole source of all problems that plague the world — India. US, China, Japan, Africa wherever humans live — is the Rule of Lie Sold as Rule of Law to protect lawbreakers and wrongdoers making Courts of Law act as Courts of Lie. SCOTUS Rule 10 provides that petitions to review are rarely granted when the asserted errors are erroneous factual findings or misapplications of correctly stated rules of law evidencing miscarriage of justice. SCOI follows it. YET, motions can be made under the State Created Danger doctrine to reverse and correct nullities. This law with the flaw is sold as wisdom to make mistakes and not correct them. Thanks as before. Please read out prior two Replies.
    Law Offices of Lalit K Jain Esq., India and US Supreme Court and NY State Courts.

  11. Ashwani Joshi, Advocate says:

    Different problems plague India. Everybody is interested in self-betterment. Why SCOI ? Why not most lower or next higher to him ? SCOI is not within everybody’s approach. Lawyers charge by minutes. Let wisdom dawn upon a nearest executive.

  12. April 18, 2014
    Law Offices of Lalit K Jain Esq., India and US Supreme Court and NY State Courts.

  13. V P Rajan says:

    We are so oblivious, it appears. The Parliament has passed the National Tribunal Act way back in 2005. This, if implimented, would reduce one step of litigation and would give out decisions/ratios that may me mandates in many cases. Also certain decisions may even prompt some comprehensive amendments.
    Whatever be the interests for or against the prospective members/judges of National Tribunal and also of the representatives/counsels, it is high time to finally decide on the constitution of the National Tribunal.
    Hope the Government will do something soon.

  14. April 18, 2014
    In the eyes of the law, no litigation means no revenue. A lot more crores and crores of revenue is earned. It leaves less locked up in litigation to satisfy the need for seed money to insure lifelong litigation. Latin, res ipsa loquitor means the thing (truth) speaks for itself in English generating no revenue. Lies speak for others generating revenue. Thanks to our noble practice of law (lie) zealously re-presenting our clients’ truth. It keeps the blind eyes of all courts of law still blind to buy inadmissible evidence as admissible evidence. It makes lawobeyers and rightdoers live on the wrong side of the law crucified by courts of law and licensed lawyers. It makes lawbreakers and wrongdoers live on the right side of the law like the Income Tax Department bound by the Constitution to obey, not disobey, the Income Tax Law. A lawyer dying to help prove and improve our XCS (Excuse-Controlled-System) that denies into an ECS (Evidence-Controlled-System) that admits truth (foolproof proof of facts) as admissible evidence is disbarred from practicing law. That is why in 1828 the SCOTUS (Supreme Court of the United States) interpreting the COTUS (Constitution of the United States) settled a Self-Correcting-Precedent that is controlling in all common law nations including India. “Where a court has jurisdiction [in law], it has a right to decide every question [or issue] …, whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding [even when discretion was used to make it incorrect and make-believe that it is correct knowing that it is incorrect]…. But if it act without authority [like when it use discretion to act above the law thus without jurisdiction in law], its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal [which is required by law if voidable] in opposition to them. They constitute no justification, and all persons concerned in executing such judgments or sentences [that are nullities] are considered in law as trespassers [(Trespassers-in-law)]. Elliott v Lessee of Piersol, 1828, 26 US (1 Pet.) 328, 340-341. “When rule providing for relief from void [and thus from voidable when duly vacated as void] judgments is applicable, relief is not discretionary matter, but is mandatory. Orner v Shalala, 30 F3d 1307 (Colo. 1994). “It is clear and well established law that a void order can be challenged in any court [at any time with no time limit].” Old Wayne Mut. L. Assoc. v McDonough, 1907, 204 US 8, 27 SCt 236. It makes all using discretion to act above the law thus without jurisdiction in law trespassers-in-law and their decisions nullities with one problem: absolute immunity protecting judges will not protect anyone else from orders to compensate the injureds for injuries caused by litigation MISused to make lies win, truth lose. The Self-Correcting-Precedent requires nullities to be vacated and reversed by corrected decisions with no time limit, the sooner, the better, to help minimize compensation from trespassers-in-law. The solution is the injureds making a motion for an order by the Court to vacate each and every decision of the Income Tax Department violating the High Court Mandate as a nullity and thus give compensation to the injureds as mandatory relief for injuries for caused as a result of MISusing discretion to act above the law (mandate) without jurisdiction in law to insure that crores and crores stay locked up in unneeded litigation for unjust enrichment. It’s the law. Thanks.
    Law Offices of Lalit K Jain Esq., India and US Supreme Court and NY State Courts.

  15. Suresh Kumar Advocate says:

    The author is not aware that the strictures was passed because assessee advocate had sought time , first in the morning however the adjourned was not granted. when the matter was called out in the afternoon session , the assessee advocate again asked the time. It appear that the author of this article is not aware of what happen in the court on that day.

    Suresh Kumar

  16. D K Gupta says:

    It is a welcome change that someone is also talking about “good work” being done by the ITAT. Thanks Dr Shivram. Unless we recognize and value it, we have no moral right to criticize the bad work too. It is a good beginning.

  17. Ashwani Joshi says:

    The word ‘satisfaction’ has not been defined in the law books but it is found in almost all enactments. In the absence of proper guidelines as to the use , such words prived unbridled choice of powers to the persons in authority. A situation can be held to be ‘satisfactory’ or ‘unsatisfactory’ at the whim. A simple word ‘un-‘, before ‘satisfactory’ put by a dishonest executive with an ulterior motive, can leave an unsuspecting,simple and honest person to knock at the door of courts for rest of his life at the cost of time and money. Only because it is his satisfaction, wrong or right. Nexus with higher echelon is one reason. One link in the hierarchy can spoil the whole chain.

    Accountability for every dubious action should be strongly dealt with. Since precious time of courts and the government stood penalty should be such drastic as erring authority remembers all through life. All the costs should be recovered. Example set.

  18. i agree with dr shivaram that monitoring mechanism is in place

  19. Atul Ramani says:

    Appreciated. There is a case where concession to developer who is developing slum was amended in Finance Act 2004 but the clarification comes in August 2010 and January 2011 that to without proper clarity now how can the assessment of the said assessee can be completed and the assessee has to indulge in litigation for nearly 15 years to resolve this issue. This should be condemned and PIL should be passed against the same.

  20. good piece by dr shivaram; see with so much material about good work of tribunal with equally so much material clearly dr shivaram is right in saying that there is nothing wrong pulling up ITATs y its wrong or not fair judgments, as revenue these days seem to be trying not correctly telling law and procedure position correctly simply rape assesses right and left, so cases are growing in great numbers at the cost of tax payers moneys, so dr shivram is right in suggesting pull up tribunals is indeed a right thought i fully agree with dr shivaram, tks n regds

  21. P R says:

    You must be kidding when you say that the Members “deserve to be appreciated for their work”. Quality and impartiality in work does not seem to be relevant any longer.

  22. Ashwani Joshi says:

    Very well. Hon’ble Judges and the editor Dr Shivaram has done a commendable job. Legislature will do well to enact a law on accountability of erring, over clever and corrupt officers.

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