Registry is directed to send the copy of this order to the President - ICAI,

[CA.BHUPENDRASHAH]

IT : CA who appears as AR for client before the ITAT have no locus standi to
file any application before ITAT in his individual capacity without the client's
consent after disposal of client's appeal. CA's conduct of filing such
application after the date of Tribunal's order disposing it off in his client's
favour for expunging remarks from order sheet without filing any affidavit
before ITAT was contemptuous nor stating how any observation of ITAT was
injurious to him, abuse of process of law and scandalized the system of delivery
of justice

Held

• Instant application is filed by the CA in his individual capacity and not on
behalf of the assessee after disposal of assessee's appeal.

• Once the appeal is disposed, the power conferred upon the professionals or the
Authorized Representative by virtue of the Power of Attorney by the assessee,
comes to an end.

• The professionals or the Authorized Representatives do not have any locus
standi to file any application before the Tribunal in his individual capacity
because the Tribunal is not created to redress the grievances of the
professionals.

• Its function is to adjudicate the disputes between the assessee and the
Department.

• The appeal was allowed in favour of the assessee. The assessee had no
grievance against the order passed by the Tribunal

• Instant application filed by the CA with an ulterior motive for the reasons
best known to him after 48 days from the hearing, disputing the facts recorded
in the order sheet dated 08/02/2013.

• Moreover, there is no provision under the Act which entail the professionals
to move any application in their individual capacity without obtaining the
consent of the assessees before the Tribunal after disposal of the appeal.

• After disposal of the appeal, an application can only be filed on behalf of
the assessee under section 254(2) of the Act for seeking rectification in the
order passed under 254(1) of the Income Tax Act.

• But there is no provision under the Act in which an application can be filed
by any Advocate/Chartered Accountant/ Authorised Representative in his
individual capacity for seeking rectification in the proceedings of the hearing,
without the consent of the assessee.

• In fact it is not only misuse of process of the law but it is sear abuse of
process of law.

• No professional has any right to invoke the judicial machinery for his own
interest without any reasons. If he does so it would amount to professional
misconduct on the part of the professional.

• Moreover, to dispute the proceedings of the court, without any cogent
material, is also an attempt to scandalize the court and also to create
hindrance in the proper judicial functioning of the court which cannot be
permitted under any circumstances. If it is allowed to be done, the judicial
system will collapse.

• There is hierarchy in the judicial system.

• If someone is aggrieved with the judicial order passed by any judicial forum,
he may approach the higher forum against that order and get the redressal of his
grievance but he has no right to make an attempt to scandalize the court by
moving such a frivolous application.

• Appeal was disposed of vide order dated 06/03/2013 and order was pronounced in
the open court allowing the appeal of the assessee.

• The factum of dictation of order in the open court is also admitted by CA

• CA has not furnished any explanation as to why he remained silent with regard
to the facts recorded in the order sheet dated 08/02/2013 till the disposal of
the appeal or upto 28/03/2013 when the present application was filed.

• CA has not filed the affidavit in support of his contentions despite the
repeated directions of the Tribunal.

• Whenever the proceedings of the court are disputed, it should be supported by
an affidavit as there is presumption under section 114(e) of the Indian Evidence
Act that judicial act have been regularly performed.

• Since the facts recorded in the order sheet have not been controverted by
filing an affidavit, the judicial proceedings recorded on 08/02/2013 are correct
in view of the provisions of section 114(e) of the Indian Evidence Act, 1872 and
the contentions raised in the application are highly misconceived, wrong and
contemptuous.

• Therefore, instant application is highly misconceived, contemptuous and is
moved with the intention to browbeat and scandalize the court.

• Since the action of CA is gross abuse of process of law, application dismissed
with the cost of Rs 5,000/- to be recovered as arrear of income tax from CA as
this application was filed in his individual capacity and not on behalf of the
assessee.

• This tough stand is being taken only to maintain the dignity and decorum of
the institution and justice delivery system so that it may not be misused by any
professional to settle their personal score. If they have any grievance against
any judicial forum they may approach the higher forum instead of scandalizing
the concerned court/judicial body.

• Reference made to the President of Institute of Chartered Accountants with a
request to take necessary action as per law against CA for his professional
misconduct and also to take corrective measures and necessary steps to educate
its members to behave with the judicial authorities befitting to their status
and should not be engaged in scandalizing the judicial authority/courts.

• Accordingly, the Registry is directed to send the copy of this order to the
President - ICAI, Institute of Chartered Accountants of India, ICAI Bhawan,
Indraprastha Marg, New Delhi-110 002 for necessary action in this regard.


[2013] 34 taxmann.com 283 (Lucknow - Trib.)

IN THE ITAT LUCKNOW BENCH 'SMC'

Omkar Nagreeya Sahkari Bank Ltd.

v.

Deputy Commissioner of Income-tax- I, Kanpur

[CA.BHUPENDRASHAH]

SUNIL KUMAR YADAV, JUDICIAL MEMBER
IT APPEAL NO. 572 (LUCK.) OF 2012
[ASSESSMENT YEAR 2005-06]
JUNE  18, 2013

Pradeep Kumar Kapoor for the Appellant. Praveen Kumar for the Respondent.