{"id":735,"date":"2012-06-21T18:18:21","date_gmt":"2012-06-21T18:18:21","guid":{"rendered":"http:\/\/www.itatonline.org\/blog\/?p=735"},"modified":"2012-06-21T18:18:21","modified_gmt":"2012-06-21T18:18:21","slug":"10-ways-in-which-the-tribunals-working-can-be-improved","status":"publish","type":"post","link":"https:\/\/itatonline.org\/blog\/10-ways-in-which-the-tribunals-working-can-be-improved\/","title":{"rendered":"10 Ways In Which The Tribunal&#8217;s Working Can Be Improved"},"content":{"rendered":"<p><strong>The author is enthused by the impending training programme for the Hon&#8217;ble Members of the Tribunal on &#8220;<a href=\"https:\/\/www.itatonline.org\/info\/index.php\/training-programme-on-international-taxation-transfer-pricing\/\">International Taxation and Transfer Pricing<\/a>&#8220;. It is a step in the right direction he says and adds that the time is opportune for all stake-holders to contribute their thoughts on how to improve the functioning of the Tribunal. On his, part, the author cannot resist the temptation to list a few issues that need to be paid attention to for making the Tribunal&#8217;s functioning even better than it is today<\/strong>\n<\/p>\n<p>  Income-tax Appellate  Tribunal which was founded on 25th January, 1941 has completed its 72 years of existence, and it  is for the first time President of ITAT, has taken initiative to hold a  <a href=\"https:\/\/www.itatonline.org\/info\/index.php\/training-programme-on-international-taxation-transfer-pricing\/\">Residential Refresher Course<\/a> for Hon&rsquo;ble Members from 11th August to 20th August,   2012 at Maharashtra  Judicial Academy &amp; Indian Mediation Centre &amp; Training Institute,  Bhayandar. I am pleased to know that the Hon&rsquo;ble Members will be discussing in  details the law relating to International Taxation issues and Transfer Pricing.  The Hon&rsquo;ble Members will also be learning Yoga as well as spiritual knowledge  by the guidance of experts in the field. For this innovative Residential  Refresher Course contribution of Hon&rsquo;ble President and Vice-Presidents deserves  to be acknowledged. According to me, this should be the annual feature.\n<\/p>\n<p><!--more--><\/p>\n<div align=\"center\">\n<div class=\"\"><script type=\"text\/javascript\"><!--\ngoogle_ad_client = \"pub-6440093791992877\";\n\/* judgements_adsense *\/\ngoogle_ad_slot = \"0133843924\";\ngoogle_ad_width = 728;\ngoogle_ad_height = 90;\n\/\/-->\n<\/script><br \/>\n<script type=\"text\/javascript\"\nsrc=\"https:\/\/pagead2.googlesyndication.com\/pagead\/show_ads.js\">\n<\/script><\/div>\n<\/div>\n<div class=\"articlequote\">\n<p>When members decide the issue before the Tribunal they are deciding on the fate of the assessee. One wrong decision against the assessee may ruin his life and relegate him to the position of pauper. Whereas, if the decision is against the Government, it may affect the coffers of the Government only to an extent of a drop in an ocean. Hence, the Tribunal has greater responsibility towards the assessees<\/p>\n<\/div>\n<p>The  Residential Refresher Course like this gives an opportunity to Hon&rsquo;ble Members  to know each other in a better way which will help to maintain very cordial  atmosphere and work as one family. Last year at the Member&rsquo;s Annual Conference,  the then President of ITAT Hon&rsquo;ble Mr. R. V. Easwar gave me an honour of  addressing the members at the Inaugural session of the conference. On behalf of  the Bar, I have raised certain issues for betterment of law and better  administration of justice. Hon&rsquo;ble Law Minister Mr. Salman Khurshid who was  present on the occasion assured us that he will look into the suggestions made  by us (Refer AIFTP Journal September, 2012 issue, P. No. 8). As the Journal of  AIFTP is read by most of the Members of ITAT and also most of them are regular  viewers of <a href=\"www.itatonline.org\">www.itatonline.org<\/a>, inspired me to write this editorial on the theme  of &ldquo;Thought of the Bar for Better Administration of Justice&rdquo;.<\/p>\n<p>  The  purpose of this editorial is to put forward some thoughts for better  administration of justice by the Tribunal. The Hon&rsquo;ble Members when they attend  Residential Refresher Course may, if they deem fit, discuss the following. <\/p>\n<h2>1. Gain the confidence of  tax payers who are litigants before the Tribunal\n    <\/p>\n<\/h2>\n<p>Litigants before the  Tribunal are of two categories; aggrieved assessee and the Government. But the  objective in filing appeals is different for both categories. An assessee rings  the bell of justice in the Tribunal only when the Assessing Officer levies the  taxes or makes additions which are not in accordance with law, because he has  to pay appeal fees, cost of litigation etc. Whereas the department in most of  the cases files an appeal because of fear of audit, lack of accountability and  assuming the appeal is dismissed no question is asked why appeal was filed.  When members decide the issue before the Tribunal they are deciding on the fate  of the assessee. One wrong decision against the assessee may ruin his life and  relegate him to the position of pauper. Whereas, if the decision is against the  Government, it may affect the coffers of the Government only to an extent of a  drop in an ocean. Hence, the Tribunal has greater responsibility towards the  assessees, who ring the bell of justice before the Hon&rsquo;ble Tribunal, because on  facts, the Tribunal is final fact finding authority.<\/p>\n<h2>2. Patient hearings\n    <\/p>\n<\/h2>\n<p>Most  of the members are giving patient hearings to the assessee as well as  department. Most of the members are following the practice of reading the order  of the Assessing Officer, the Commissioner (Appeals) along with the  representative and then ask for the propositions. If they have any doubt, ask  clarifications. This is very good method and desired to be followed by all the  members. Many times when judgment is referred the assessee may have read his  own way, the department may have read in a different way, similarly the members  might have understood in different way. One of our very senior professional Mr.  M. L. Bhakta shared his experience which has happened in Apex Court before the then Chief Justice of India, Justice J. C. Shah, The Hon&rsquo;ble Judge told Mr.  Kolah &ldquo;we have read the judgement and Mr. Desai has also read the judgement.  There is no need for you to read it again. Mr. Kolah replied firmly &ldquo;My Lords,  Your Lordships have read the judgement in your way and my learned friend has  read it in the way it suits him. Your Lordships will now read the judgement  with me in my way&rdquo;. The Judges quietly allowed Mr. Kolah to read the judgement  and advance his arguments in support thereof. Ultimately, the Judges decided  the appeal in favour of the assessee.&rdquo; Source: AIFTP Journal August, 2003, P.  No. 49. This showed the open mind of the Hon&rsquo;ble Judges of Apex Court. <\/p>\n<p>  It  is desired that the matters must be heard to the satisfaction of both the  parties with open mind. <\/p>\n<h2>3. Speaking and reasoned  orders\n    <\/p>\n<\/h2>\n<p>The Tribunal is the final  fact finding authority. Assessee or revenue can file an appeal before the High  Court only on substantial questions of law. When an appeal is heard by the Court  the order of Tribunal is read first. If the order does not contain the reasons,  the Court may set aside the order only on the ground that the order is not a  reasoned speaking order. When the High court had reference jurisdiction, the  Tribunal used to draft statement of facts, which contained all the facts and  questions of law which has to be answered by High Court. Now the jurisdiction  of High Court is appellate. If all the facts and reasons are narrated in the  order, it will help the Courts to decide the issue, without any difficulty. I  must say that the former president Late Shri T. V. Rajagopal Rao used to pass  very detailed reasoned order, one may also refer judgment of<em> Justice V. C.  Daga in Abdulgafar A. Nadiadwala v. ACIT (2004) 267 ITR 488 (Bom.)(High Court). <\/em>Speaking order is the soul of justice delivery system and one always  remembers a judge by his qualitative judgments. <\/p>\n<h2>4. Relying on Judicial  decisions in the order without giving an opportunity to other side\n    <\/p>\n<\/h2>\n<p>By and large most of the  members don&rsquo;t refer to case laws, which were not referred at the time of  hearing; however, few members refer to and rely upon the judgments in the order  without giving an opportunity to the parties to deal with the same. It is  desired that when a new case law is relied an opportunity must be given to the  parties. In one of the matter Hon&rsquo;ble Member relied on the judgment which was  decided by the Supreme Court after the hearing was concluded by the Tribunal.  The High Court has set aside the said order. Relying on the case laws without  giving an opportunity to the parties is against the principle of natural  justice. It is desired that if after hearing while dictating the order if any  judgment is noticed by the Hon&rsquo;ble Bench and if the Hon&rsquo;ble Members desire to  refer and rely on the same, an opportunity must be given to the parties  concerned. <\/p>\n<h2>5. General Law\n    <\/p>\n<\/h2>\n<p>Income-tax  Act refers to 98 other Central Acts and to decide some of the issues the  knowledge of State law is also very important. It is desired that in the  Refresher Course like this some of the provisions of general law may be  discussed, which include principle of interpretation of taxing statute, binding  precedent, principles of natural justice, etc.<\/p>\n<h2>6. Elevation to High Court\n    <\/p>\n<\/h2>\n<div class=\"articlequoteleft\">\n<p>According to me there are no such restrictions in the Judgment that members cannot be posted at all in the State where he was practicing earlier. If Collegiums\u2019 of the ITAT is of the opinion that the members cannot be posted at all to the State from where he has been selected at any time thereafter, with due respect that may not be correct interpretation<\/p>\n<\/div>\n<p>It  is an undisputed fact that there are good number of members who deserve to be  elevated to the High Court Recent paper reports says there are 263 vacancies in  various High Courts. Bar has always desired that there has to be a designated  tax bench in all the High Courts. As per the present procedure the collegiums  of Judges has to select the new Judges. When a member from the Bar Joins the  Bench, he is always posted outside his State. Due to this factor the collegiums  of High Court may not have any opportunity to know the capacity and integrity  of members from that particular State. It is worth considering that the  Tribunal as an institution must evolve a system in a transparent manner wherein  the collegiums of High Court is made aware that, if High Court desires to  appoint the judges who are expert in the field of taxation these are the names  and collegiums by their own method can select the best person available in the  field. This is one of the issue possibly the members can collectively decide  and put forward their view to the ministry concerned and thereafter a process  can be evolved. This will also help the good professional to join the Bench;  otherwise in the years to come many good professionals may not join the Bench.  According to me, the collegiums of the ITAT considering the knowledge and  integrity of members may prepare the list of members who deserve to be elevated  and may forward to the Chief Justice of respective High Courts through Ministry  of Law. The process and mechanisms can be evolved in consultation with the  committee which appoints the members of the Tribunal. If the proposal is sent  to the Hon&rsquo;ble Chief Justice of India, the issue can be discussed in the annual  conference of Chief Justices of High Courts. <\/p>\n<h2>7. Appointment of Members  of ITAT as members of Authority for Advance Rulings\n    <\/p>\n<\/h2>\n<p>The  Authority for Advance Rulings has to decide very intricate issues of DTAA and  International Taxation. By their experience and knowledge the members of the  ITAT are most competent to be appointed as members of Authority for Advance  Rulings. However, as on today the technical members are appointed from revenue  department. Members of the ITAT through their President and Ministry of Law may  formulate the system where in some of the members may be considered as a  candidate for authority for Advance Rulings. It may be possible that when  litigation increases country may need more benches of Authority for Advance  Rulings. Hon&rsquo;ble Members may discuss on this subject and forward their  suggestions to the Ministry of Law for their consideration.<\/p>\n<h2>8. Independency of the  Institution\n    <\/p>\n<\/h2>\n<p>The  ITAT Bar Association Mumbai is very much concerned with the independency of the  Income&ndash;tax Appellate Tribunal. Income&ndash;tax Appellate Tribunal Bar Association  has made representation to the Hon&rsquo;ble Law Minister to confirm the post of  President, appointment of senior Vice- President and Vice&ndash;Presidents at the  earliest and continuously pursuing the same with the Hon&rsquo;ble Law Minister. It  is very essential that for better administration of justice and independency of  the Institution confirmation of the President must be done at the earliest. It  is the Income&ndash;tax Appellate Tribunal Bar Association, Mumbai which has filed  the PIL when there was great threat of interference by the executive in the  administration of justice. It is the Bar which has moved and drafted the  minutes and which was incorporated in the Judgment of <em>Ajay Gandhi v. UOI  (2004) 265 ITR 451 (SC)<\/em>. According to my understanding, the Bar is of the  firm opinion that any person, who is appointed from the Bar should not be given  initial posting at the same place where he was practicing. It was not the view  of the Bar that he cannot be posted in the State where he was practicing  earlier any time thereafter. My reading of the Judgment is a member may be  posted near to his place when a person is about to retire. One may have to  consider the present scenario due to change of law, wherein the Members are not  allowed to practice before the ITAT after their retirement. According to me  there are no such restrictions in the Judgment that members cannot be posted at  all in the State where he was practicing earlier. If Collegiums&rsquo; of the ITAT is  of the opinion that the members cannot be posted at all to the State from where  he has been selected at any time thereafter, with due respect that may not be  correct interpretation. To be safer, the ITAT through Ministry of Law may move  petition before the Apex Court and get the clarification from the Apex Court. This is one of the issues which the Hon&rsquo;ble  Members may discuss together and reach a conclusion which will benefit the  Institution. <\/p>\n<h2>9. References\n    <\/p>\n<\/h2>\n<p>Many  new members have joined the Tribunal. We desire that all of them should excel  and should become ideal members. This is possible by one&rsquo;s willingness to learn  and improve. I make an appeal to new members to read the following articles  which will help them to perform better as members.<\/p>\n<\/p>\n<p>My  &ldquo;IDEAL Tribunal Member&rdquo; by Mr. S. E. Dastur, Sr. Advocate (Golden Jubilee  Souvenir of Income-tax Appellate Tribunal 1841-1991 (1993) P. 162) <\/p>\n<\/p>\n<p><a href=\"https:\/\/www.itatonline.org\/articles_new\/index.php\/the-art-of-writing-judgments\/\">The  Art of Writing of Judgements by Mr. M. A. Bakshi, Vice President, ITAT<\/a> (AIFTP  Journal April, 2008 P. No. 4) <\/p>\n<\/p>\n<p><a href=\"https:\/\/www.itatonline.org\/articles_new\/index.php\/conduct-on-and-off-the-bench\/\">Conduct  On and Off the Bench by Mr. P. P. Parikh, Vice President, ITAT<\/a> (AIFTP Journal  April, 2008 P. No. 15)<\/p>\n<\/p>\n<p><a href=\"https:\/\/www.itatonline.org\/articles_new\/index.php\/effective-dispensation-of-justice-role-of-the-tribunal-honble-shri-r-v-easwar-president\/\">Effective  Dispensation of Justice by Mr. R. V. Easwar, Vice President, ITAT<\/a> (AIFTP  Journal June, 2012 P. No. 5)\n<\/p>\n<p>    <em>(Note &#8211; There are many very good speeches and articles written by the  Hon&rsquo;ble Members who are serving as Members, hence, no reference is made to  their speeches and articles) <\/em> <\/p>\n<h2>10. &nbsp;Paper reports<br \/>\n    <\/h2>\n<\/p>\n<p>  Continuous  reports and allegations which are published in various papers about ITAT have  shaken the confidence of the assessees in this institution. One must appreciate  that some of the reports may be wrong or may not have been presented in right  perspective. However, the ITAT being a Judicial forum cannot give any press  release or give any explanation. We desire that the Hon&rsquo;ble Members must  discharge their duties without fear and favour whatever may be the allegations,  Bar and the Bench must collectively work to restore the glory of Tribunal which  has deteriorated due to recent incidents. <\/p>\n<\/p>\n<p>I  am confident that when Hon&rsquo;ble Members complete their Refresher Course they  will be much more knowledgeable and all will make a sincere attempt to preserve  the honour and integrity of this mother Tribunal. On behalf of the Bar, I wish  the Residential Refresher course all the success.<\/p>\n<\/p>\n<p>Readers may have some  better ideas and thoughts for better administration of justice by the ITAT.  They can forward the same to the AIFTP (aiftp@vsnl.com \/ aiftp@yahoo.co.in)  which can be considered by the ITAT Bar Association&rsquo;s Co-ordination Committee  for their consideration. <\/p>\n<p> Jai hind<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/www.itatonline.org\/blog\/wp-content\/uploads\/2008\/12\/ksa_sign.gif\" alt=\"ksa_sign\" title=\"ksa_sign\" width=\"97\" height=\"41\" class=\"alignnone size-full wp-image-57\" \/><\/p>\n<p> Editor-in-Chief <\/p>\n<\/p>\n<p> Reproduced with permission from the AIFTP Journal, June 2012\n<\/p>\n<div align=\"center\">\n<div class=\"googleblog\">\n<script type=\"text\/javascript\"><!--\ngoogle_ad_client = \"pub-6440093791992877\";\n\/* judgements_728x90_text *\/\ngoogle_ad_slot = \"9745610733\";\ngoogle_ad_width = 728;\ngoogle_ad_height = 90;\n\/\/-->\n<\/script><br \/>\n<script type=\"text\/javascript\"\nsrc=\"https:\/\/pagead2.googlesyndication.com\/pagead\/show_ads.js\">\n<\/script> <\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>The author is enthused by the impending training programme for the Hon&#8217;ble Members of the Tribunal  on &#8220;<a href=\"http:\/\/www.itatonline.org\/info\/index.php\/training-programme-on-international-taxation-transfer-pricing\/\">International Taxation and Transfer Pricing<\/a>&#8220;. It is a step in the right direction he says and adds that the time is opportune for all stake-holders to contribute their thoughts on how to improve the functioning of the Tribunal. On his, part, the author cannot resist the temptation to list a few issues that need to be paid attention to for making the Tribunal&#8217;s functioning even better than it is today<\/p>\n<div class=\"read-more\"><a href=\"https:\/\/itatonline.org\/blog\/10-ways-in-which-the-tribunals-working-can-be-improved\/\">Read more &#8250;<\/a><\/div>\n<p><!-- end of .read-more --><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[3],"tags":[],"class_list":["post-735","post","type-post","status-publish","format-standard","hentry","category-judiciary"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/posts\/735","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/comments?post=735"}],"version-history":[{"count":0,"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/posts\/735\/revisions"}],"wp:attachment":[{"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/media?parent=735"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/categories?post=735"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/itatonline.org\/blog\/wp-json\/wp\/v2\/tags?post=735"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}