Q.1 CAUSE LIST – The cause-list, be it for Fridays or for the month is available only after sufficient delay. Requests have been made in the past for providing copies thereof in soft form, so that the requisite information can be forwarded to Bar members from the Bar itself.
The Hon’ble President observed that the orders pronounced in court ought to be the orders which are finally communicated through written judgements. Any variations in this regard would be amenable to a rectification under section 254(2) of the Act.
Ans. The Hon’ble President readily agreed to issue directions to the Registry to start providing soft copies for communication to the Bar members by email.
Q.2 ORDER COPIES – Copies of judgments have often been sought by the Bar. It was assured in the past that important orders including Special Bench and Third Member orders would be made available. That awaits implementation. Besides, the press seems to be getting orders which the Bar is denied. Orders as passed by the High Courts or by the Supreme Court itself are regularly uploaded to their website. For free viewing on the internet on a daily basis, to anybody who cares. There is therefore no reason for the Tribunal’s order to not be freely available. The provision of the orders of the Tribunal to the Bar in the routine may be examined and decided upon.
Ans. The Hon’ble President informed that larger numbers of orders are now arranged to be published.
Q.3 SPECIAL BENCH & THIRD MEMBER MATTERS – There is no system in place for appraising the Bar with information regarding pendency of Special Bench and Third Member cases. The Bar is constrained to take such information as received during the hearing of its matters from the Bench. A system requires to be instituted.
Ans. The Hon’ble President agreed to publish periodically in the ITD, lists of pending Special Bench cases. So far as Third Member matters are concerned, the same being privy only to the appellant concerned, the Hon’ble President stated that such did not require wide publicity.
Q.4 TRIBUNAL’S CIRCULARS, INSTRUCTIONS, ETC – Copies of administrative circulars, instructions and others order issued by the Tribunal may also be issued to the Bar for information and Knowledge of its members.
Ans. The Hon’ble President agreed to mark a copy of the Circulars or Instructions which are of public importance or are such that are relevant to the Bar’s interest.
Q.5 VARIATIONS IN ORDERS – Very often, orders of the Tribunal are received at variance with the pronouncement made in the open court, Of course, there is a considerable delay between the oral pronouncement at the time of hearing and the communication of the written order. These variations require to be looked into.
Ans. The Hon’ble President observed that the orders pronounced in court ought to be the orders which are finally communicated through written judgements. Any variations in this regard would be amenable to a rectification under section 254(2) of the Act.
Q.6 COVERED MATTERS - In respect of covered matters, when such is pointed out to the Bench with a copy of the Tribunal’s order as relied upon, oftentimes, the other side, even before receiving a copy of the order, denies the issue being covered. Most benches then freely give time to the other side, sometimes up to the time of rising of the Bench, or in frequent instances, even to the next day, to state its case. In such circumstances, the bringing to the notice of the Bench that the issue in appeal is covered by an earlier order virtually becomes a punishment for the party who so does. It is requested that in respect of such matters, due importance is accorded to the Tribunal’s orders as are pleaded to be relied upon.
Ans. The Hon’ble President assured serious consideration of the problem by the benches. However the President observed that it is a judicial matter, no instruction can be issued.
Q.7 COVERED MATTERS - In respect of the covered matters, even after the other side has conceded that the matter is covered and no hearing takes place, yet an order is latter handed out without following the order as relied upon the adopting a totally new approach adverse to the person who claimed that the issue was covered. Such situations undermine the principles of natural justice besides overruling orders of a previous division bench on enigmatic criteria and distinctions which have never been confronted for clarification.
Ans. The Hon’ble President expressed his sympathies for any miscarriage, and assured to look into specific cases where such difficulties have arisen.
The Hon’ble President stated that he has asked registry to consider to arrange that all appeals, immediately on their filing would be given appeal numbers and would go to respective Benches. In all such cases in future, notices be issued immediately, and if the case could be concluded on the appointed date, the same would be done, otherwise adjournment would be granted for any convenient dates in future.
Q.8 HEARING OF SMALL MATTERS – In the last meeting, it was pointed out that because of a heavy matter being on top of board, small matter tended to get adjourned. It was than assured that small matters would be taken up first, and thereafter the heavy matter would be taken up. Most often, this practice is not followed and at about 1.00 pm, people attending to the smaller cases are told to take dates as may suit their convenience. Often again, hearing in the heavy matter is not complete, and rolls over to the next day as well. A procedure may be devised to maximize disposal to the satisfaction of the Tribunal and the litigant.
Ans. The Hon’ble President hoped that the practice of clearing small cases before taking up heavy matters would as always, receive due emphasis and consideration by every Bench.
Q.9 SUBMISSION DURING HEARING – It is often required to be pointed out to the Bench that the other side is not confining itself to the brief, and makes mention of facts and situations which are beyond the purview of the brief. Even after such is pointed out, the benches appear reluctant to interfere. This often leads to an avoidable mis-appreciation of facts.
Ans. The Hon’ble President stated that sometimes such situations arise because of persons appearing on the other side may not have regular professional experience. He clarified that every bench is to control its proceeding in accordance with rules.
Q. 10 SUBMISSIONS DURING HEARING – Often, representation on behalf of the Department is done in seriatum by all the Dr’s present before that Bench. Such free participation is touted on the grounds of their being officers of the court and ostensibly helping the court in the discharge of its judicial functions. Such procedure is unknown in the higher courts, where the room is ‘One Case, One Counsel per Side’. Even when such is pointed out to the Branches, it is overlooked.
Ans. The Hon’ble President stated that the right of the Bench to obtain assistance of any counsel present in the court was supreme, and that anyone other than the counsel on his legs could interfere only with the permission of the Bench.
Q. 11 NUMBER OF CASES ON THE BOARD – Fewer number of cases are now being fixed for hearing before the Benches. Because the number of cases listed are themselves less, many Benches are reluctant to grant adjournments on request. It was only to tide over this difficult that previously 22 cases were fixed up for hearing so that even if adjournments are granted in a considerable number of cases, there are still enough cases for the day for disposal. The old practice requires to be reconsidered.
Ans. The Hon’ble President agreed to look into the matter.
Q.12 EARLY HEARING APPLICATIONS – A procedure for disposal of applications for early hearing may be devised and instituted.
Ans. The Hon’ble President stated that he is prepared to look into the problem in any specific case. He further stated that due to changes in procedure, under contemplation, this problem may not arise in future. (Also see Ans. To Supplementary Q.2)
Q.13 STAY APPLICATIONS – A uniform procedure for handling applications for stay may be instituted as has been done at Bombay.
Ans. The Hon’ble President saw no reason not to follow the circular in Delhi branches. However, circular is now to be read subject to Bombay High Court decision.
Q.14 ADJOURNMENT IN STAY-GRANTED MATTERS – Adjournment in stay-granted matters at the behest of the department despite the limitations on the Tribunal’s power of stay are irking both to the litigant and to the Tribunal itself. Some remedial methodology should be evolved.
Ans. The Hon’ble President stated that keeping in view the inconvenience to Assessees, adjournments by benches in such matters should be few, and for short durations.
However, this is a judicial matter, no instructions are possible.
Q.15 MINIMUM TAX EFFECT APPEALS – There is a clear divergence of opinion with regard to the departmental appeals which are below the permissible tax effect as per the CBDT Circular. The jurisdictional High Court has come down severely on the Department on this point, and is regularly imposing costs on the Department for filing such appeals, as according to the High Court, each appeal causes considerable ministerial and clerical work in the registry which is a were, and such cost as awarded is a step to compensate, albeit such cost. The Tribunal may also consider a similar course of action.
Ans. At Delhi, the Hon’ble President was informed that the Delhi High Court itself does not consider granting substantial questions in view of the CBDT Circular. Such practice to be followed by the Delhi Benches of the ITAT also. Benches have to follow High Court decisions, the President added.
Q.16 DRESS CODE — The dress code prescribed in the ITAT Rules has to be uniformly administered. Any indulgence and exception provided to the Department only gives the erroneous impression that one side is more equal than the other.
Ans. The Hon’ble President stated that the dignity of the court should not be compromised, and that people appearing in the court should abide by the provisions in this regard.
Q.17 ENTRY OF CLERKS & STAFF — Entry of clerks from the offices of counsels continues to be a major problem with the reception at Gate No. 2 getting more and more aggressive. Some formula or procedure is required to be instituted for providing passes to the supporting staff of the counsels.
Ans. The Hon’ble President suggested that the Bar may issue I-Cards to the staff of its members, and also agreed to consider the proposal to station a person at the entry of the building at Gate No. 2 to receive the daily ‘daak’.
Q.18 VACATIONS - Even during the last fortnight of June, many Appellants were refused adjournments even though their counsels were unavailable on account of being away on vacations. This is despite the arrangements to the contrary.
Ans. See Answer under 19.
Q.19 VACATIONS - During the last fortnight of December, only a few Benches assemble on account of non-availability of members. Similarly, in the months of June & July, only a few cases get completed because counsels and Members are away on vacation. Could a practice not be Instituted whereby the periods of 15th to 30th June end 16th to 31st December be earmarked as ‘No Vacation periods? These breaks will provide valuable time and opportunity to the Tribunal for in-house-keeping, and members of the Bar would also be facilitated in arranging their vacations and work schedules.
Ans. The Hon’ble President agreed that two breaks if permitted would provide much needed rest to the Bench as well as to members of the Bar. But any arrangement in this regard could be worked out and permitted only by the Law Ministry.
Q.20 ADJOURNMENT APPLICATIONS IN ADVANCE – Even if applications are made for adjournment 3 days in advance of the date of hearing, in most cases, they are not being attached to. This causes avoidable anxiety and tension, since such prayers are to be entertained only in event of the counsel travelling out of town or in respect of an outstation counsel who is unable to travel to Delhi.
Ans. The Hon’ble President stated that mention could be made before Benches. In case of any difficulty, the Hon’ble Vice President, or if he is not available, he himself would help in this regard.
OTHER POINTS DISCUSSED WITH THE HON’BLE PRESIDENT THROUGH SUPPLEMENTARY QUESTIONS:
Q.1 It was pointed out that appeals were often dismissed ex-parte because the counsel to represent the matter or his staff were before another Bench at the time the matter got called and carried. In the event of the order–sheet being stamped by the time the counsel returns to the relevant court, the Bench is unable to intercede.
Ans. The Hon’ble President agreed to convey to the Registry the order sheet be stamped only after the rising of the Court in respect of ex parte matters.
Q.2 It was suggested that as soon as an appeal is filed and found to be in order, the registry should intimate the appeal number as well as the designated Bench.
Ans. The Hon’ble President stated that he has asked registry to consider to arrange that all appeals, immediately on their filing would be given appeal numbers and would go to respective Benches. In all such cases in future, notices be issued immediately, and if the case could be concluded on the appointed date, the same would be done, otherwise adjournment would be granted for any convenient dates in future. (This also answers Q. 12 above.)
