The author, an eminent senior advocate, points out that the orders passed by the ITAT have severe ramifications on the taxpayers and the department and that it is essential that its Members undergo rigorous training before being permitted to exercise their powers. The author expresses concern that the newly appointed Members of the Tribunal do not appear to have undergone an “orientation” course and have been straightaway permitted to hear matters and pass judgements. He urges that the old practice of formally tutoring the new Members of their duties and responsibilities and of apprising them of the basic fundamental characteristics of a judge should be revived and implemented immediately. He emphasizes that the orientation course and judicial training will help the new Members to discharge their duties more efficiently and uphold the dignity and honour of the Tribunal
Income–tax Appellate Tribunal which was established on 25-1-1941 will be celebrating its platinum jubilee on 25-1-2016. Today, the Tribunal is considered as one of the finest institutions in our country. The credit must go to the Hon’ble Members who administer the justice and to the Tax Bar which represents matters before the Bench. Very recently, the Government has appointed 36 new members, many of who are very young and they have a long tenure to serve as members of the Tribunal. They have greater responsibility to preserve the purity and integrity of this Institution being one of the finest institutions in our country.
Earlier, whenever new members were appointed, there used to be an orientation course for the new members for at least 15 days which was addressed by Hon’ble judges of the Supreme Court, judges of High Courts and senior members of the Tribunal on subjects like natural justice, tax Jurisprudence, principles of interpretation especially of taxation statutes, etc. There also used be an ‘All India Members’ Annual Conference’ to discuss and deliberate on various issues concerning the Tribunal, to enhance its working and performance to a remarkable level. I have had the opportunity and fortune of attending and addressing four such conferences.
One would appreciate that the Income-tax Act, 1961 refers to 98 other Central Acts and various State legislations. So, there is a marriage of these allied laws referred into IT legislation, which too are required to be necessarily studied in the course of delivery of judgments, if relied upon by the Bar in the course of hearing before the Tribunal. Therefore, in-depth knowledge of these general laws referred to in the IT Act, will surely help Members to deliver qualitative judgments.
Various articles published in ‘Diamond Jubilee Souvenir of Income–tax Appellate Tribunal in the year 2001’ will be a fountain of inspiration to all young Members of the Tribunal, who have joined the Bench very recently. They may therefore like to read the same for their grooming. For their ready reference, few of them, are cited below:
– “Principles of Natural Justice” by Hon’ble Justice Mrs. Sujata V. Manohar, Supreme Court of India (2008) AIFTPJ – March- P. 5
– “Rules of Precedence” by Hon’ble Justice Mr. B. N. Srikrishna, Supreme Court of India
– “Vision 2020-A Road ahead” by Hon’ble Justice Mr Ashok Bhan, Supreme Court of India (2008) AIFTPJ – June – P. 5
– “The Key to the Success of the Tribunal” by Hon’ble Justice Mr. Mohit S. Shah (2011) AIFTPJ – December – P. 6
– “Role of Tax Tribunal in the era of globalisation” by Hon’ble Mr. Justice (Dr.) D.Y. Chandrachud
– “Rules of Interpretation of Tax Laws” and “Conventions & Procedure of Income Tax Appellate Tribunal, and “Qualities of a Good Judge” by Hon’ble Justice Mr. T. N. C. Rangarajan
– “Qualities of a Judge and Principle of Natural Justice” by Hon’ble Justice Mr R.V.Easwar Judge Delhi High Court (2012) AIFTPJ – March – P. 7
– “Effective dispensation of Justice: Role of the Tribunal” by Hon’ble Mr. R.V. Easwar, President ITAT. (2010) AIFTPJ – June – P. 5
– “The Art of Writing Judgments” by Hon’ble Mr. M.A. Bakshi, Vice-President (2008) AIFTPJ – April – P. 4
– “Conduct of Members – On and off the Bench” by Hon’ble R.P.Garg, Vice President, (Regional Conference of ITAT, 15th July, 2006
– “Conduct on and off the Bench” by Hon’ble Mr. P.P. Parikh, Vice President (2008) AIFTPJ –April – P. 15
– “Art of writing Judgment” by Hon’ble D. Manmohan, Vice President, ITAT (2012) AIFTPJ – March – 19
– “Landmark cases” (Selected Cases) by S. Rajaratnam (2008) AIFTPJ – April – P.21
– Guidelines to Hon’ble members of ITAT for drafting orders, letter addressed to the Hon’ble Members by The President of ITAT posted on 25-6-2008 .www.itatonline.org
– Code of Ethics adopted by the members of the ITAT – Letter dated 20-6-2008 by the President of ITAT. www.itatonline.org
– “My Ideal Tribunal Member by Shri S.E. Dastur, Senior Advocate (2001) AIFTPJ – April-June – P.33
There are conventions which members may have to follow, both on and off the Bench, which can be shared by the senior Members of the Tribunal as well, with new members to have good rapport and brotherhood amongst themselves.
It may be desirable to make a compilation of all the above cited articles and whenever a new Member joins the Bench, the same may be presented to him along with convention book which may prove a treasure of learning at his desk to help him to deliver qualitative and landmark Judgments. If an opportunity is provided the Federation will compile all the above referred articles and will present the same to the new members along with message and vision from the Hon’ble President.
An assessee rings the bell of justice in the Tribunal and High Court only when the Assessing Officer levies taxes or make additions which are not in accordance with law. As appeals involves time and money, before doing so he makes a careful cost benefit analysis and elects to file an appeal where the stakes are high and there are chances of success. Many a times though he may be having very good case in appeal considering the litigation cost he prefers not to file an appeal. He is no academician and he does not derive any pleasure in obtaining a judgment for the sake of publicity or for laying down a legal precedent. The revenue on the other hand files an appeal in most of the cases mainly because there is no accountability and the fear of investigation. One will find more than 65% appeals before the High Court is of the revenue.
In one of the Conferences a well-known tax Judge who headed the Tax Bench for number of years stated that whenever an assessee filed an Reference Application under section 256(2) for referring question of law he normally used to admit the reference on sound reasoning that he always felt that when an assessee approaches High Court definitely some injustice must have been done to him otherwise why he will spend lakhs of rupees in tax litigation, therefore at least he deserves admission. Whether he will succeed or not the decision will be taken at final hearing.
The Tribunal being a final fact finding authority the assessee can file an appeal to High Court only on a substantial question of law. In Mumbai, for admission it takes nearly two years and if admitted, another 13 years for final hearing and disposal. Therefore, if any wrong order is passed against an assessee, it takes nearly 15 years to get it reversed.
Under the circumstances, there is greater responsibility on the Bar to assist the Bench to arrive at correct decision. Members of the Tribunal may please bear in mind that by hearing the appeals, they are not merely adjudicating on the issues before them but they are invariably deciding on the fortunes of the assessees, as per law. Therefore, one wrong decision against an assessee may possibly ruin his life and relegate him to the position of a pauper, and he may be held liable for penalty and prosecution, the same against the Government, may affect the coffers of the Government to an extent of a drop in a vast ocean. Considering this gravity and effect of the judgment, Tribunal has a greater responsibility to the citizen in our democratic set-up.
Learning is a continuous process for any professional for continuous updation, professionals attend various seminars, workshops to get updated on case laws and to understand the development of law. It may equally be desirable that there could be an annual conference of Members of the Tribunal to interact with each other and share knowledge and experience to improve the justice delivery system so that the name of the Tribunal will be a shining feature of the IT Act.
The Hon’ble President of the ITAT, Hon’ble Justice Dev Darshan Sud (Retd.) is making a sincere attempt by sharing his judicial experience and knowledge to enhance the status of the institution by following the convention and practice followed by High Courts. One will be able to see the changes in the process of justice delivery system in the years to come. Hon’ble President is open to any constructive suggestions for better administration of justice. Readers may therefore send their suggestions to the AIFTP which will enable the ITAT Bar Associations’ Co-ordination Committee, to forward the same for the consideration of the Hon’ble President.
On behalf of Editorial Board and on behalf of the AIFTP, we offer our best wishes to all the new Members of the Tribunal, a sustained judicial career and a very bright tenure as Members of the Tribunal. We trust that the Tribunal should become paragon in the administration of justice.
Dr. K. Shivaram
Editor-in-Chief, AIFTP Journal
Reproduced with permission from the AIFTP Journal