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Messages - Ashish kumar

Recently I met one CBI officer & informed him about some members( CESAT), who are taking double views on same issue, he said a PE can be registered against such members without any approval of Home. He clarified that members of the Tribunal are not judges they are presiding officers and as per the Prevention of corruption act provisions if there is an apparent corruption then PE can be registered without any approval of Home and then if they failed to justify their action in PE FIR can be registered against them. He asked me example double yard stick, I quoted that some where the members have held that violation of principle of natural justice amounts to quashing of proceedings and somewhere they throw back the bowl in the coat of lower authorities. He suggested me to collect such orders from the web portals and asked me to make a note of such orders, then he assures me that CBI action would be taken against them definitely. I am collecting some orders from the net and then hand over these orders to the intelligence agencies. I asked him whether same procedure will be followed in respect of member of all tribunal he said yes 
I have come across very interesting episode of complaint by a Sr DR posted in G Bench Delhi, namely Shri Prakash Dubey. His complaint is that he dont receive any document via mail, sent by the counsels of assessee at the officials mail id given to them for virtual hearing and hence he is able to grab an adjournment in every case. When the I inquired from the ITO-ITAT- G Bench- She told that he is telling lie, she confirmed that she is delivering each and every document to him. Now only god knows that who is speaking truth, but the fact of the matter is that assessees are suffering due the adjournments. So my appeal to CBDT that enquiries may be conducted in this issue and necessary action of measure penalty should be taken against the culprit. Whoever is culprit should be punished with measure penalty. I am also sending a complaint to the chairman CBDT and Member Vigilance so that necessary inquiries would be done in this matter and  action as per vigilance laws may be taken against the real culprit. Further the members also adjourning cases conveniently ignoring the submissions of the counsel that they have mailed the documents. Some times counsels are filing the screen shot of the mail delivered. Now question arise as to why an innocent assessee would suffer due to this nuisance, as there is no fault of them. Further if the counsels are telling lie then action should be taken against them as per law, by the members.However the members should not act as mock spectators. It is injustice with poor assessees. 
ITO Vs Pawan Kumar 153 ITD 448(Del) have similar facts as of yours Mr Parsad.
The next decision is Gurpreet Singh Vs ITO 157 ITD 262(Chd)
Jaya Aggarwal Vs ITO-254 Taxman 398 (Del)

I hope that the above are enough
Discussion / Working of DRs in ITAT
March 04, 2021, 07:41:16 PM
I have often heard from so many DRs that ITAT is a punishment posting for them for the reasons best known to them. I would not comment on this observation. Be that as it may be, when I joined ITAT the DRs who were working here were very responsible, understanding their duties towards court, were not arguing any thing nonsense. But now in these days few DRs particularly at Delhi are useless persons they always appear in a very casual manner, wont read their files and argue the matters left right center without any basis. I am also working for Central Govt since last 15 years, I have seen their that Govt counsels wont contest those cases which are covered by the judgments. However in the ITAT I have seen that DRs are arguing just for the sake of arguments without appreciating the verdicts of Higher Forum , I have made a list of such DRs and will submit to the Chairman CBDT and Revenue Secretary, along with the copies of judgments and ask for some action against them under the relevant vigilance rules & regulations. Be that as it may be dozens of my relatives are also working in  Income Tax department I will discuss with them also how vigilance action should be initiated against such useless persons and why Govt will not give them Compulsory retirement under the provisions of section 56 of the Prevention of corruption act. I will not name here, though I can. But i will not name otherwise they would be cautioned. But the point is that why they waste time of the court. Why they wont respect the precedents of higher courts is an issue which requires consideration at higher level. In fact the ITAT members should impose cost on them directly deductible from their salaries, if they wont concede a case which is covered by the Higher Forum. With this I would end here and hope that legal lumanaries would support my views. 
Discussion / A Bedi at every Important Station of ITAT
February 01, 2021, 11:41:14 AM
It has been learned by me that every important station a UBS BEDI type member is kept by the chairman so that things would remain under control or may be for some other ulterior reason, but let me tell you one thing that this type of administration is highly critcised by the international community, who want to provide FDI but wont invest due to these type of reasons so Law Ministry has to see this and do something as early as possible 
Discussion / Ajay Gandhi Judgment of Apex Court
January 12, 2021, 05:23:55 PM
In this case the Apex Court has laid down certain rules regarding the transfer/ posting of the learned members of ITAT, now in these days it appears that the authority vested with the power of transfer is not following the verdict of this case. As it can be seen that many of the members have been given posting at those places where they have practiced. Why Supreme Court is not taking cognizance suo motto   
Hon'ble Delhi High Court is not hearing those matters in which the hearing would go beyond 30 Minutes, now the question is whether ITAT can hear those matters where hearing go beyond 30 minutes, whether it is not incumbent on the President of ITAT who retried as judge of High Court to issue necessary directions vis-a-vis cases required long hearing. The president should have directed to list these cases for physical hearing is the view of the undersigned who is a social worker not an advocate or CA
Hello friends recently I have visited USA in order to attend conference of NATP, it was a great session, I am fully amazed, observing the respect to the verdicts of Highest Judicial Fora, the lower Judicial officers pay great respect to the observations made by the Apex Body, they completely bow down to the guidelines, irrespective of their personal benefits. When i hung around and took a survey, I found the reason behind this respect and that is the respect to the concept of Rule of Law, Rule of law is a concept developed by AV Diecy in his book Constitution of London way back. All the legal luminaries be the judicial officers and be the practitioners, follow the concept of rule of law. It is not merely in the interest of judicial system, they said, but also in the interest of nation, since FDI in those countries would not come where there is no rule of law. For example the present position of lndia, people think that judgments of ITAT r buried only here in India but I found that each and every judgment be it on penny stock be it on section 68, be it on transfer pricing have been analyzed at length by the in house legal brains of the Foreign players who explore the environment of a state before investing in that state, in fact i got a shock of 440 Volt when I found that are watching the transfer and posting of members at Important stations. One of them shown me the data of last 10 years transfer of posting and also the judgment of Ajay Gandhi. I was surprised to see this minuscule research of the professionals of foreign investors. They openly said why one would invest in such a country where there is no respect of rule of law, as ultimately the investor would suffer and incur losses. Similarly there are so many other things they have shown to me which would when confront to the Govt of India here then a chaotic situation may arise. They really appreciate the ITAT Bar of Bombay which a Committee of Ethics.     
Recently the undersigned has read two judgments in the case of ULO India, one is in ITA No-5968 of 2010 and one in ITA No 5279 of 2013. Both are of same assessee. In former decision, Bench of ITAT held that assessee dose not have PE in India and in later a Bench of equal strength has held that the assessee have PE in India, the later Bench does not even stop here, it has also held that the view taken by the Earlier Bench is not in accordance with law.
As per the little knowledge of the undersigned, principle of Judicial Discipline demands that decisions of coordinate Bench is binding on the other Bench even if it is incorrect, the law in this regard is settled by the Supreme Court way back in S.I ROOPLAL Vs GOVT Of INdia AIR 2000 SC 594, Union of India Vs Paras Laminate 254 ITR 99 and there are so many other Supreme Court and High Court judgments. In all theses decisions it has been held that if the later Bench feels that the decision of earlier Bench is not correct then the matter shall be referred to larger Bench. And judicial discipline completely debar the coordinate Bench of Equal strength to overrule the decision of earlier bench, but now in these days personal views are above the judicial discipline and hence there is no respect of settled law. I wonder what message will go in International Community about the image of ITAT(a noble institution) where the main presiding officer is retired High Court Judge. All these developments give us sign of anarchy/ lawlessness, which a poor assessee would face in future, and evolution of intellectual corruption. It is not good for an Institution so the Hon'ble President would have to step into and looked into the matter and he should send these types of persons on legal training under the steamed guidance of a High Court Judge. Otherwise no FDI will come in India and new professional will have to fight only cases of share application money in future.
Jai Hind Jai Bharat         
On 6th July 2018, the Ministry of law and Justice issued a Notification, by virtue of which it has invited applications from professionals for the post of ITAT Members. As per this Notification the members who have completed 10 years of profession and have age between 35 to 50 are entitled for the post of member after facing an interview.
In response to this advertisement around 750 applications were received out of which 600 candidates have been shortlisted for interview.
Now on 3rd May a new development has happened that is only 150 candidates have been filtered out of 600. When the undersigned has enquired the things from reliable sources then it is emerge that only those candidates who have completed 20 years of profession and have some reasonable income are being called for interview. And the rest of the professionals have been out rightly rejected. Now my question to the legal luminaries of the Bar, a bar which has been founded by Great Shri Nani Palkhiwala, that is not injustice to those candidates whose candidature has been rejected out rightly without any interview. Whether it is not violation of fundamental rights of the professional who are eligible as per the provisions of Act and Rules of ITAT.
My humble request is that necessary action in this regard may be initiated otherwise days are not far when only revenue side and judicial services side persons would be appointed. And no body aware that under GST, the area where I am practicing, the new provisions have no space for advocates or CA. Similarly slowly and gradually this practice would come under Income Tax Tribunal also and then only God knows what would happen to a poor assessee who visit ITAT in hope of justice. Since I am a Chartered accountant and not possessing much knowledge of law. I don't know where the remedy lies

Thank you and Jai Hind