Dear Judges, Why Punish Citizens For AO’s Incompetence?

The author is upset at the recent judgement of the Supreme Court in Post Master vs. Living Media India that if the department delays filing an appeal without sufficient cause, the appeal has to be dismissed to “teach the department a lesson“. This amounts to punishing innocent citizens for the incompetence of one officer says the author. Instead, the incompetent officer(s) should be made to pay costs from his pocket to “teach him a lesson” rather than to dismiss the appeal and prejudice innocent citizens, argues the author.

I just can’t understand why Judges keep talking about it but just can’t do anything about it. Since time immemorial, Judges have been lamenting the indifferent attitude amongst the officers in the department towards filing appeals in time. Almost every single appeal is delayed – some by a few months and some by a few years! Judges give an earful to the department’s counsel but then meekly condone the delay. This has become a ritual.

I don’t see how this is acceptable. Why should I and you, taxpayers and citizens, have to bear the burden of what one irresponsible officer in the Postmaster’s office did or did not do? Also, what if the officer was in a conspiracy with an unscrupulous assessee to deliberately delay filing the appeal and get it dismissed?

Lord Curzon, who was the Viceroy and Governor-General of India between 6.1.1899 to 18.11.1905, was the first to encounter the menace. He described it in immortal words:

“Your despatch of August 5 arrived. It goes to Foreign Department. Thereupon Clerk No. 1 paraphrases and comments upon it over 41 folio pages of print of his own composition, dealing solely with the Khyber suggestions in it. Then comes Clerk No. 2 with 31 more pages upon Clerk No. 1. Then we get to the region of Asst. Secretaries, Dy. Secretaries and Secretaries. All these gentlemen state their worthless views at equal length. Finally we get to the top of the scale and we find the Viceroy and Military Member, with a proper regard for their dignity, expanding themselves over a proportionate space of print. Then these 49 papers wander about from Department to Department and amid the various Members of Council. I am grappling with this vile system in my own department, but it has seated itself like the Old Man of the Sea upon the shoulders of the Indian Government and every man accepts, while deploring the burden.”

More than a 100 years have passed since then. After that, there have been a plethora of judgements of the Supreme Court and High Courts, in all of which the Learned Judges have done nothing but to “lament” over the irrepressible ways of the Government. In 1979, the Supreme Court called the irresponsible attitude of the department the “curse of Lord Curzon” .

Now watch how the individual concerned will move like his pants were on fire! He won’t sit down till the appeal is filed. He won’t wait for the period of limitation to expire. His alacrity and efficiency in attending to judicial matters will put his private sector peers to shame

In Ornate Traders vs. ITO 219 CTR 256, the Learned Judges wrote reams of paper on the subject, ending with the “pious hope” that the department would mend its irresponsible ways.

And now the Supreme Court, after giving another earful to the department, says that the appeal should be dismissed to teach the department a lesson. I don’t see how this is acceptable. Why should I and you, taxpayers and citizens, have to bear the burden of what one irresponsible officer in the Postmaster’s office did or did not do? Also, what if the officer was in a conspiracy with an unscrupulous assessee to deliberately delay filing the appeal and get it dismissed?

If an individual officer or officers were responsible for the delay, should he/ they not be hauled up and made to pay the price?

There is nothing difficult about this. All that has to be done is for the Court to impose personal costs on the officer concerned. The Court has to say:

“Dear Sir, thank you for filing the appeal with a delay of 100 days. Your explanation for the delay is bogus. The appeal is admitted but please deposit Rs. 10,000 from your salary to the Orphans & Widows Charity Trust by tomorrow and send us the receipt. Have a great day!”

Now watch how the individual concerned will move like his pants were on fire! He won’t sit down till the appeal is filed. He won’t wait for the period of limitation to expire. His alacrity and efficiency in attending to judicial matters will put his private sector peers to shame.

That’s the only way to teach irresponsible officers of the department a lesson. There is a saying in Hindi “Laaton Ke Bhoot Baaton Se Nahin Maante” (people who don’t do their duty except after being forced to do so will never be persuaded by sweet talk) which fits the situation aptly.

CA Vellalapatti Swaminathan Iyer

13 comments on “Dear Judges, Why Punish Citizens For AO’s Incompetence?
  1. rangarao.k says:

    Dear Sir,It is not the irresponsibility or incompetence of the Officers in the department.It is the lack of proper staff,sufficient number of stenographers,good infrastructure like desk-top computers,printers et al.As Lord Curzon rightly wrote, it is the cumbersome system in India which is making of all this problem. Let me narrate the system functioning.Assume that for the asst.year 2002-03, the order is passed by March-2004. Then first appeal to Commissioner,(one to two years),next to Tribunal(may be 4-5 years,then to High Court(may be 5-8 years).Then the total litigation time is 10-15 years. By the time decision to file SLP is taken,the file would be eaten away by insects.That is how it happens.

  2. Deepak C Gadgil says:

    Sir, I now hereby request you to also take up the cause of those Assessees who have pending appeals at CIT A level arising out of huge but unjustified demands,
    & which are not disposed off in time set out by the law on the one hand, & on the other hand the AO’s go on forcing the Assessees to pay up the impending demands under one ground or the other by pressurising them. In some cases refunds for next years are unuly adjusted against these demands by CPC withour giving the Assessee any opportunity to explain his case

  3. Prof. Abdul Gani Bhat says:

    This is quite revealing. Appreciative thanks. But asking the dead horse to run is no fun. The Judges play pranks and jokes with the people of India on their exalted seats. When the Judges dismiss the appeal to teach the officer a lesson in effect they made the populace to get a lesson. The judges have not done their job and should be punished.

  4. D J Shah says:

    I have the examples where Hon. Justices punish for nothing!! To hide Advocates misdeeds!!!!!!!!!! I have proof.

  5. veermani says:

    I agree the individual officers should be made to pay for their negligence in filing the appeals in time. They should also be punished for filing frivolous and vexatious appeals. I do not know the facts of the case where the appeal is dismissed as the appeal has been filed late. It is a basic principle of Equity “delay defeats equity”. This principle should apply to government particularly for it is the government which should set standards by example. – government has been claiming that it is the ideal employer – an example of setting standard. In this case I feel the appeal itself should be frivolous and vaxatious in nature.

  6. Shashikant G Parasramka says:

    The provision in the Government of India Act, 1935 based on the Monarchy system contains a provision to the effect that “Acts of state – doing something and/or not doing something when required to be done” shall not be called for in question before any Court of Law and no plaint/petition would lie against such Act. This is a enabling provision for the bureaucracy to think “They are uncrowned Kings” and it is they who run the administration with some meddling from the political parties. Thus they can by their mighty pen do almost everything just by passing a order.

    Let the provision be done away with and see the Courts’ then flooded with numerous plaints for the wrongs done by the bureaucracy. As is it is now, the govt. with whatever the SC has now done finds this as judicial activism for wrongs of the bureaucracy highlighted and then go for amending the law to favor them.

  7. ashokkatte chartered accountanta says:

    The AO’s performance mostly not controlled by his superior authority. Every officer is interpriting written and well shaped lncome tax law in his own way, just taking pains for harassing noble tax payers with some economic motivation doing work to spread litigation and doing nothing as per citizen charter which is hanging outside his office cabin. AO’s work should be assessed with help of local law practitioners association.

  8. kiran says:

    Commendable suggestion: True, the person committing error of delay and dilatory tactics, willful or wanton, should face the music. He only should take the consequences of delay and its repercussions. The innocent should not
    be made victim of backlashes emanating from the inherent procrastination of a public servant.

  9. drparasjain says:

    Of late, Tax Guru has become a can of garbage , where any one can excrete any kind of shit !!
    Supreme court doe not find facts nor it deals with ministerial officers. courts are not expected to look into the demeanor of all the employee. We have something called administration to take care of such things JUdistration to rule this country.
    What does the author want- a banan republic with parallel source of authority so that no law will ever become final ; Bravro !!

  10. K S Dhingra says:

    The Hon’ble Court has correctly dismissed the appeal on ground of limitation. The State as a litigant does not stand at a footing different from an ordinary citizen. However, in order to “teach him a lesson” The Hon’ble Court could have directed the Department to conduct the enquiry and recover the loss or part of loss caused to the State from the officer (or officers) responsible the delay. Even now and without a direction from the Hon’ble Court, the Government should wake up to the situation, do some introspection and take appropriate action against the responsible person or persons to compensate the State.

  11. Shashikant G Parasramka says:

    Yes, there is some what sense in the author’s view. But i think it would also make sense if the author had commented on the view taken by the SC that a taxpayer need not be condoned for delay in filing of appeals, but at the same time the dept. can get away with delays as no personal element is involved and this only supports bureaucracy and red-tapism. Yes no personal element is involved, but a individual is not as organized and resourceful as the govt. itself is. Further resource in terms of cost involved for a govt. is immaterial, but material enough to a taxpayer who ponders first over the likely outcome of the appeal and weigh the filing of appeals vis-a-vis the anticipated outcome. The dept. does not pay a penny for filing appeals and the counsels cost is also not borned by the dept. concerned, but the ordinary man does pay for it and this should not be ignored. Let the dept. also pay for the appeal and the counsel’s cost – this should be shown as expense incurred and deducted from the net revenue of the department, then they would realize what filing of frivolous appeals means. Judgments of High Courts are not accepted by the lower authorities in spite of jurisprudence and SC decision that they are binding on all lower courts below the rank of a High Court including the Tribunal, yet CIT (A) and AO’s fail to consider the judgment saying the non-jurisdictional High Courts order in not binding on them and then begins the assessee’s woes and the incurring of costs. This only proves that the AO’s pen is mightier than the sword. The “Akshar becomes small, but the bhains becomes big”. The AO’s performance should as correctly pointed by the author should be judged by how many decisions taken by him have been litigated and the ultimate result at Tribunal / High Court Level and then given promotions.

  12. vinod says:

    File an appeal to penalise the officer

  13. vinod says:

    File an appeal to penalise the officer !!!!!!

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