SPEEDY JUSTICE IN TAX MATTERS — PENDENCY OF TAX APPEALS ARE REDUCED IN MUMBAI.
Our Constitution provides for an independent and efficient justice delivery system. No doubt there are delays in disposing the tax matters. On analysing the causes for delay one will find that delay is not because of courts but it is due to tax administration. In tax matters 70% of appeals are by tax department.
Statistics shows that, the Tax Benches of Bombay High Court, Hon’ble Justice Mr. F.I. Rebello and Justice Mr. J.P. Devadhar and Justice F.I. Rebello and Justice R.S. Mohite in the period 21st June, 2007 to March 2008, has disposed of 6,513 tax matters and admitted 963 matters (total 7,476) matters (Click here for details). The court working days for the period was 180 days giving average 415 matters per day has been disposed of. It may be for the first time such a large number of tax matters were disposed of. This has helped to reduce the pendency of tax matters before the Bombay High Court. At present the pendency of tax appeals is 2,600 and references is 2,100. If tax bench sits for full week to hear only the direct tax matters, the pendency of tax matters can be substantially reduced, this will help the assessee as well as the department.
The members of the Bar have also observed that lot of time of the court is lost just to find out what has happened in the earlier year, the department is not able to answer whether appeals are filed or not. To overcome such a situation the ITAT Bar Association has made a suggestion, that while filing an appeal the tax department and the assessee should file a fact sheet with certain particulars in the specimen proforma (Click here). If the same is furnished it will save substantial time of court and will benefit the assessee as well as department. It will also help to group matters involving common issues. This will also help the process of computerisation. If the experience is satisfactory the same may be implemented in other High Courts and also Apex Court. If Central Board of Direct Taxes takes some initiatives all pending tax matters before various High Courts can be computerised and within two years of filing of appeal the matters can be heard and disposed of. This will save tax-payers money and possibly we may not require proposed National Tax Tribunal. A thought for debate.
Dr. K. SHIVARAM
The author laments that the Finance Bill 2008 made everyone happy – except the judiciary.
Judiciary is guardian of our democracy. The common men have faith in the temple of justice. Only one criticism against the judiciary is that there is delay in disposing of the matters. Delay in disposal of matters are not on account of judges, it is only due to shortage of judges and lack of infrastructure. When world is becoming one global village, the judiciary also requires to keep pace with modern technology. The judiciary is neither having any political lobby to take up the cause of judiciary with the Government when the allocation of fund is required to be made for modernisation and innovation nor they can make the representation to Government, therefore, like defence, it is very essential for the Government to allocate in each years budget a specific amount for the research in law and modernisation of judiciary. We hope the Government will consider the proposal positively.
Like every year, this year’s budget also is full of promises and very little on the accountability. Unless the concept of accountability as suggested by Dr. Raja J. Chelliah is introduced whatever may be the law, the honest tax-payers may have to undergo the process of litigation to get the refund or to get the correct assessment. The late Shri N. A. Palkhivala in his Article published in Illustrated Weekly of India February 14th, 1982 on the subject of “The Budget of my dreams” stated that “I believe that the Union Budget should not be annual affliction but should partake more of the nature of the presentation of annual accounts of a partnership between the Government and the people. It is impossible to expect from the people good faith and acceptance of their moral duty to pay taxes, unless the Government first proves itself to be fair, considerable and reasonable”.
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The judgement of the Delhi Bench of the Tribunal in Mayawati vs. DCIT, and the hysterical reactions thereto by the opposition political parties, makes interesting reading. The Tribunal was faced with the question whether whopping “gifts” amounting to Rs. 12 lakhs in cash and Rs. 62 Lakhs in immovable property received by the Dalit Czarina was assessable to tax as unaccounted income.
The Officer’s incredulity at the BSP Supremo’s claim that she had received “gifts” was founded on the fact that the so-called donees were seen to have borrowed moneys to bestow the largesse. They were not family members of the Dalit leader nor was there any other relationship. There was also no “occasion” for the benevolence, he claimed. Ergo, the bonanza was nothing but Madam’s illegitimate income, he alleged.
The Tribunal, however, did not have the same suspicious mind as that of the Officer. It took the view that “the aspect of voluntariness depends upon the mental state. The element of love and affection relate to emotions of a man. One may be impelled by his conscience or may be moved by emotions to part away with his wealth or property and to give the same to a particular person for whom he has developed love and affection. Such a desire can be developed at any time and on any ground. The factors which weigh for executing such desire are best known to the donor. It is not easy to make probe into such human psychology or human emotions which one may carry at the time of making such sacrifices. It has been stated by some of the donors that the assessee was engaged in the welfare of downtrodden and dalit in the society. May be the prompting motive were such appreciable deeds of social welfare of the problem of the weaker sections of the society, which made the donors to make gifts to her”.
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1. The State Commission, Delhi, by its order dated 10-3-2006 in Appeal No. 1815 of 2000 held that the services rendered by the Lawyer would not come within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986, as the client executes the power of attorney authorizing the Counsel to do certain acts on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do any such act. The State Commission further observed that it is a unilateral contract executed by the client giving authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking.
2. Against the aforesaid order the Complainant had preferred the Revision Petition before the National Consumer Disputes Redressal Commission, New Delhi. The National Consumer Disputes Redressal Commission, New Delhi vide their Revision Petition No. 1392 of 2006 dated 6th August, 2007 has held that “In our view, the reasoning given by the State Commission is totally erroneous. The ambit and scope of Section 2(1)(o) of the Consumer Protection Act which defines ‘service’ is very wide and by this time well established, it covers all services except rendering of services free of charge or a contract of personal service. Undisputedly, lawyers are rendering service. They are charging fees. It is not a contract of personal service. Therefore, there is no reason to hold that they are not covered by the provisions of the Consumer Protection Act, 1986.”
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This could have come straight off a Ripleys’ believe it or not entry. Imagine – a court room in a car!
HT reported that The Employees Provident Fund Appellate Tribunal, India’s top court dealing with PF disputes from across the country, has been functioning from an ambassador car for more than three months now. It has apparently been like this ever since a fire on October 6 destroyed its office in the ninth floor of Mayur Bhawan in Delhi. The car is the official vehicle of R.L. Koli, the Tribunal head or the presiding officer, as he is known.
HT provided graphic details as to how the court in the car functions: Apparently, the Tribunal’s head and his stenographer sit on the rear seat. The lawyer positions himself on the front seat, near the driver’s, and turns back to make submissions.
This sorry state of affairs did not go unnoticed. Outlook reported that the Chief Justice of India K G Balakrishnan lashed out at the government apathy. "There is failure of the states to create better judicial infrastructure. It is pity that the Executive is neglecting judiciary while carrying out infrastructure development in the states," it quoted him as saying. Unless the Executive comes forward with funds to provide adequate infrastructure to the judiciary, the latter will not be able to contribute better to the society, he said, adding that the states have to find a way out to bring judiciary out of the infrastructure constraints.
There is a popular commercial by a furniture maker running on television which uses a courtroom as the setting to demonstrate the long-lasting abilities of its plywood. Two young lawyers are arguing a matter about a buffalo which apparently caused damages to the Plaintiff, prompting him to seek damages from the owner of the buffalo. The Respondent’s demand is that the buffalo, being the alleged culprit, must be produced in court as a witness, leading to an uproar in the court and prompting the judge to adjourn the matter. Months turn to years and decades go by and the lawyers and the judge, now sprightly octogenarians, are still at the same stage at which they were at the beginning of the case. The plywood table stands mute spectator to the going-ons in the court room with the voice-over saying tongue-in-cheek “Chalta Rahe, Chalta Rahe” (It goes on and on).
Real-life court room business is, however, unfortunately, not as humourous as in the commercial and the gross delay in the disposal of matters is not a matter to be taken lightly. Matters reached a head a few days ago in the High Court when repeated adjournments sought by the lawyers prompted a sharp rebuke from the Hon’ble Chief Justice.
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Indian businessmen have made a remarkable achievements in the global business scenario, however, Indian professionals are yet to make the presence felt in the global scenario. Bar Council of India does not permit to have a partnership with chartered accountants profession or company secretaries. In the era of globalization apart from knowing the law, issues relating to Accountancy and Companies Act are very much essential for the mergers and acquisition. Therefore it is the time to think, why not permit all three professionals to come together and render the services under one umbrella. For appearing before the Court it can be stated that only lawyer partner can represent similarly, for audit certificate can be given by Chartered Accountant, and procedure relating to Companies Act may be handled by the Company Secretary. If all three professionals are allowed to have partnership it will help to render better services and Indian professionals can meet the challenges of global competition. A thought for debate and consideration!
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We are still waiting with bated breath for the new Income-tax Code which was supposed to be released by December 2007. The Finance Minister P Chidambaram has said that the Code is an exercise of the future and is not aimed at amending the existing Income Tax Act 1961. “This report is about a brand new Income Tax Act, which if all goes well, will come into force from Apr 1, 2008, that is assessments made for 2009-10,” he said. He added that the new Act would hopefully come into force from April 2008 subject to Parliament approving it “well in time”.
This time-table may have to be delayed because it was announced today that a “white paper” would first be released and the Code would be introduced in Parliament only after all the loose ends were ironed out.
Meanwhile, the AIFTP has released its’ six-point wish list for the new Income-tax Code which balances healthy pragmatism with a dash of idealism.
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The oft-criticized holiday calendar of the Supreme Court will now have to reckon with the scrutiny of the the Parliamentary Standing Committee for the Ministry of Law and Justice on “Judicial Reforms”.
What has met with the ire of legal reformists are the startling figures of mounting arrears coupled with a spree of unending holidays for the apex court.
At the beginning of 2006 there were nearly 29,000 cases vying for the attention of the apex court. By October 2007, this number has spiralled to 44,819. And many of these are cases which have taken decades to reach the apex court.
In this backdrop, the Court’s calender for 2008 reveals that out of 366 days, there are only 192 working days. The rest of the 174 days (nearly 6 months) are made up of holidays. The Court enjoys 7 weeks of ‘Summer vacation’, two weeks for Christmas & new year, a week for Diwali and various assorted holidays for Id, Moharrum, Raksha Bandhan, Maha Shivratri etc. This is marginally better than 2007 when the number of non-working days (189) outnumbered the number of working days (176).
Of course, in addition to these holidays and vacations, individual judges are entitled to their own quota of leaves, according to the provisions of Supreme Court Judges’ salary and other Condition of Service Act, 1958.
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