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Posted on by admin Posted in judiciary, legislation — 2 Comments ↓

Dr. K. Shivaram, Sr. Advocate, laments that the Government has turned a complete blind eye to the woes plaguing the judiciary. There is not even a whisper about allocating funds to the judiciary in the latest Budget. He points out that apart from lakhs of pending cases, there are as many as 10,000 TDS prosecution matters which are pending before the Magistrate’s court in Mumbai alone. Many of the cases are pending for nearly 15 years and are frozen at the stage of framing charges. The author has pointed out that an effective judiciary is as important to the Country as is National security. He has urged the Government to take immediate remedial steps in the matter and not to splurge funds on frivolous issues like installing “justice clocks”

The Judiciary is as important as National security – In the visionary budget presented by the Honourable Finance Minster, there was not a single word or proposal spelt out on how the Government in its second term won with an overwhelming mandate plans to meet the challenges of skyrocketing pendency of litigation in our country – A robust, efficient and efficacious dispute resolution method for speedy disposal of tax and commercial disputes would go hand in hand with the objective of the Government in boosting foreign investor confidence and providing a fillip to growth.

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Posted on by admin Posted in judiciary — 2 Comments ↓

Dr. K. Shivaram, Sr Advocate, has taken strong exception to the move of the CBDT to set up a committee to examine “perverse orders” of the ITAT. He argues that such a move is not justified given that a bulk of the orders of the ITAT are approved by the Higher Courts. He also argues that this move interferes with judicial independence because it may instill fear in the minds of the ITAT Members that deciding matters against the department may attract adverse action against them. The author has advised the department to set its own house in order first and has offered several practical suggestions in that behalf

Tax litigation – Committee of Commissioners of Income tax to examine aspects of tax litigation is a welcome move, however the term of reference being “To examine the cases where ITAT has passed perverse or irregular orders or where the submission of DRs have not been recorded by ITAT to be appropriately taken up with President, ITAT/Ministry of Law”,is highly opposed by the tax professionals across the country – Can a litigant allege the orders of the Quasi judicial Body to be perverse when 80% of orders of the Appellate Tribunal are accepted by the parties and where 81.85 % of the orders of the Appellate Tribunal are upheld by the High Courts.

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Leading lawyers like Rafique Dada, Janak Dwarkasdas, Aspi Chinoy and Dr. K. Shivaram have explained the steps that young professionals should take to help them get recognition amongst the fellow professionals, tax administration and also from the judiciary.

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Posted on by admin Posted in judiciary, legislation — 13 Comments ↓

Dr. K. Shivaram, Senior Advocate, has sent the clarion call to all professionals to put on their thinking caps and offer suggestions to the Hon’ble Chief Justice of India on how to improve the Country’s broken legal system. The author has highlighted a few core reforms which require to be implemented on an imperative basis

TAX PROFESSIONALS OF THE COUNTRY SHOULD CONTRIBUTE TO THE VISION OF THE HONOURABLE CHIEF JUSTICE OF INDIA WHO IS TRYING TO EVOLVE A SYSTEM WHICH CAN PRODUCE BETTER RESULTS.

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Dr. K. Shivaram, Sr. Advocate, has expressed shock that the Government’s promises of ushering in ‘ease of doing business’ is proving to be nothing more than empty rhetoric. He has revealed startling facts that the vacancy in tax judges will take 15 years to be filled up and that tax disputes will take at least 23 years to be resolved. He has offered practical suggestions about how the Government can speedup the process of resolving tax disputes, if it is really inclined to do so

In the Times of India on 16-9-2019, it was reported that it will take a minimum of 15 years to fill the vacancy of judges. Though the Government promises to help achieve ‘ease of doing business’ in India, unless the tax litigation is settled within a reasonable period of time, the object of doing business with ease in India may not be achieved. Total pendency of appeals before the ITAT as on 1-07-2018 is approximately 9,69,050, out of which a pendency of 22,039 is at Delhi and 16,108 is at Mumbai (2018) AIFTPJ–July–P 45.

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Dr. K. Shivaram, Senior Advocate, is distraught at the blatant disregard by the Government towards the welfare of the ITAT. He has revealed shocking facts about how the Govt has acted in defiance to the directions of the High Court and the CAT and not bothered to appoint core staff to the ITAT for the past 15 years. The less said about the non-appointment of the Hon’ble President and Vice-Presidents, the better, he says

A wake – up call for the ITAT administration – Challenges due to acute shortage of Deputy Registrars, Assistant Registrars and other staff

The ITAT was not only the first Tribunal to be set up in this country but it has, over the years, proved itself true to its object of providing fair and speedy justice in the field of direct tax litigation. It is therefore a cause of concern that recently, issues that expose the underlying administrative apathy have come to light that are affecting the smooth and efficient functioning of the Tribunal. The orders of the ITAT have great financial implications on both the Government as well as common man and hence its smooth functioning is essential for the purposes of both speedy justice and revenue collection.

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Dr. K. Shivaram, Senior Advocate, has referred to a number of recent incidents which show that the ITAT is no longer as independent as it used to be in the past. He warns that if the ITAT loses its independence, taxpayers will lose confidence in the institution and this will have a debilitating effect on the administration of justice. He has called upon the Tax Bar to rise to the occasion and save the ITAT from Governmental interference

The Independence of the Income Tax Appellate Tribunal is the need of the hour for effective administration of justice – The Tax Bar has a greater responsibility to strengthen the independence of the mother Tribunal and to promote an unpolluted justice delivery system.

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Dr. K. Shivaram, Senior Advocate, has sent the grim warning that new terms of appointment and removal of the Tribunal Members does not auger well for the independence of the institution. He says that as the Government is the biggest litigant, its role in appointing and removing Members will play havoc with the free working of the judicial mind. Members may be wary of taking bold decisions against the Government for fear that there will be retaliatory punishment in the form of dismissal from office or non-renewal of the tenure

The Ministry of Finance has by Notification dated 1st June, 2017 notified the Rules for Appointment and Service Conditions of Members of 19 Tribunals in India. The Income Tax Appellate Tribunal [ITAT] is one such Tribunal. A reading of the Rules leaves no two opinions in the mind that the underlying agenda behind the Rules is elimination of the control of the Judiciary over ITAT and correspondingly tilting the same in to the hands of the Executive.

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The learned author has raised the seminal question whether if a judge of the High Court is appointed President of the ITAT, he constitutes a “Member” and has the jurisdiction to hear and decide appeals u/s 252 and 255 of the Income-tax Act, 1961. He has argued that such a President is restricted to doing administrative work and has no jurisdiction to do judicial work

Section 252(3) of the Income-tax Act, 1961 was substituted w.e.f. 1/6/2017 to empower the Central Government to appoint a sitting or retired Judge of High Court and who has completed at least seven years of service as a Judge in a High Court, as the President of the ITAT. Before the substitution of the section, a President was appointed from amongst the Vice-Presidents or the Sr. Vice-President. Vice Presidents are appointed under Section 252(4) of the Act from amongst members of the Appellate Tribunal. Therefore, before the section was substituted, the pool from which a Vice President or a President was to be appointed was amongst the members of the ITAT. Under the substituted Section 252(3) of the Act, a qualified Judge is appointed directly as President and not from amongst the pool of Members of the ITAT.

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Posted on by admin Posted in legislation, profession — 4 Comments ↓

Advocate Neelam C. Jadhav has prepared a compilation of important judgements relating to the taxability of unaccounted black money deposited in bank accounts in the wake of demonetisation. The compilation of judgements will prove invaluable to tax professionals and tax payers in the wake of the heavy litigation between the tax payers and the income-tax department that is likely to ensue shortly

1. S. 4: Income – Chargeable as – Assessee’s books actually showing a cash balance of above Rs.38,000 as on the day immediately preceding the date of demonetisation. – In the absence of material before the Tribunal, it could not have held that only 22 out of 28 high denomination notes represented cash balance and the remaining 6 constituted income from undisclosed sources.

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