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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Dr. K. Shivaram, Senior Advocate, has hailed Demonetisation as a great move and a bold step to reduce the black money circulation in our country. He has called it a “War against corruption and black money” and opined that the move of the Government deserves to be appreciated and encouraged. He has also given important pointers on whether the disclosure of black money will attract penalty under s. 277A and other provisions of the Income-tax Act

The Press release issued by the Government of India Ministry of Finance Department of Economic Affairs reads as under “With a view to curbing financing of terrorism through the proceeds of Fake Indian Currency Notes (FICN) and use of such funds for subversive activities such as espionage, smuggling of arms, drugs and other contraband in to India, and for eliminating Black Money which casts a long shadow of parallel economy on our real economy, it has been decided to cancel the legal tender character of the High Denomination bank notes of Rs 500 and Rs 1000, issued by RBI till now. This will take effect from the end of 8th November, 2016”

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Dr. K. Shivaram, Senior Advocate, is upset at the inaction of the Government in appointing Vice-Presidents to the ITAT. He explains that this inaction demoralizes the hardworking Members of the ITAT and robs them of the prospects of promotion. The author has also expressed grave reservations at the proposal of the Government to merge all the Tribunals into one body. He explains that the proposal is ill-conceived and has been mooted without paying regard to the specialized knowledge that is required to decide complex income-tax cases

Why is the Government not appointing the Vice-Presidents of the ITAT? Whether the move of the Government to merge the ITAT with other Tribunals is justified?

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The author, an eminent senior advocate, compliments the Supreme Court for having struck down the National Judicial Appointments Commission Act. He warns that the Act would have, if upheld, grossly undermined judicial independence. He, however, candidly concedes that the existing Collegium system of appointment of Judges has several deficiencies and that it has enabled undeserving candidates to be elevated to high judicial positions. He has identified those deficiencies and offered suggestions on how they can be resolved

In a landmark judgment, the Supreme Court has declared the National Judicial Appointments Commission (NJAC) unconstitutional. The collegium system where judges appoint judges, will continue, as according to the Supreme Court the NJAC Act interfered with the independence of judiciary.

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The author expresses concern over the proposal of the Income-tax department to launch prosecution proceedings against taxpayers without waiting for the outcome of the appeals filed by them. He argues that this proposal is ill-advised and will result in grave miscarriage of justice

In recent days, some assessees have received the show cause notices for launching of the prosecution as soon as the penalty is confirmed by the Tribunal.

With respect, mere confirmation of penalty by the Tribunal cannot be a ground to initiate prosecution proceedings. Assessee may otherwise be filing returns regularly and paying the taxes and only in one year, unable to substantiate the claim of deduction. Can such an assessee be considered as tax evader?

Many times penalties are confirmed because the facts are not properly presented before the tax authorities and the appellate authorities. Read more ›