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Where purchases made by assessee-trader were duly supported by bills and payments were made by account payee cheque, seller also confirmed transaction and there was no evidence to show that amount was recycled back to assessee, Assessing Officer was not justified in treating said purchases as bogus under section 69C: SLP dismissed
[2018]
SUPREME COURT OF INDIA
Principal Commissioner of Income Tax, Surat-1

v.

Tejua Rohitkumar Kapadia
arising from THE  TAX APPEAL NO. 691 of 2017  HIGH COURT OF GUJARAT AT AHMEDABAD

Shailesh D. Mehta, Mumbai vs Income Tax Officer 17(3)(3), ... on 4 April, 2018
We have heard the rival submissions.We find that while deciding the appeals the FAA has not passed speaking and reasoned order. In his 21 pages'order we do not find any logic as to why he was confirming the order of the AO.He has reproduced orders of various judicial authorities without mentioning as to how they were applicable to the facts of the present case. We do not want to mention as to how an FAA should write his order.But,we would like to mention that as an appellate authority,he should give the reasons for approving or rejecting the claim made before him.We would like to refer to the case of Buildwell Assam P.Ltd. (133 ITR 336),wherein the Hon'ble Gauhati High Court has held as under:

"Section 250(6) of the I.T. Act, 1961, prescribes the manner of disposal of an appeal. An order must be in writing containing the points for determination and decision. The object is obvious. It enables a party to know the precise points decided in his favour or against him. Absence of formulation of points for decision or want of clarity in decision puts a party in a quandary. A decision against a party enables him to go up in appeal. A decision by its very nature must be firm and should not be vague and unclear. If there is a direction by the appellate authority to the ITO, the latter is bound to carry out the direction. Refusal to carry out a direction is a denial of justice and destructive of one of the basic principles in the administration of justice based on the hierarchy of the authorities. Therefore, when a subordinate authority is directed to carry out certain directions by a superior authority, the 4913/M/17-Shaillesh D.Mehta tenor and colour of the order of the superior authority must be firm, clear, certain, definite and without any ambiguity.
Considering the fact that order of the FAA is not a reasoned order,we are of the opinion that, in the interest of justice,the matter should be restored to his file for passing a reasoned and speaking order.He is directed to afford a reasonable opportunity to assessee and to consider the material submitted before us by the assessee.Effective Ground of appeal is allowed in favour,of the assessee,in part.

As a result,appeal filed by the assessee stands partly allowed. फलतःिनधा रती ारा दािखल क गई अपील अंशतः मंजूर क जाती है.[/font][/size]

S. 253(5) r.w.s. 252(1): The Registrar of the Tribunal has no jurisdiction to consider and decide on applications for condonation of delay. Only the Court/ Tribunal have the power. The order passed by the Registrar is ultra vires his power and non est in law. He should desist from passing such orders In Re Hiten Ramanlal Mahimtura (ITAT Mumbai)

The decisions of the Hon’ble Calcutta High Court in the case of CIT-Vs- Carbo Industrial Holdings Ltd (244 ITR 422) and CIT –Vs- Emerald Commercial Ltd (250 ITR 549) are relevant to the issue where the Hon ’ble Court has held that where the payments are made by Account Payee Cheques and the existence of the brokers is not disputed the assessee cannot be punished for the default of the brokers and share transactions cannot be held to be bogus. The Hon’ble ITAT, Kolkata in the case of Rajkumar Agarwal (ITA 1330/Kol/2007 dated 10/08/07) has held that when purchase and sale of shares were supported by proper Contract Notes, deliveries of shares were received through demat accounts maintained with various agencies, the shares were purchased and sold through recognised broker and the sale considerations were received by Account Payee Cheques, the transactions cannot be treated as bogus and the income so disclosed was assessable as LTCG. :)INCOME TAX APPELLATE TRIBUNAL, “C” BENCH, KOLKATA
Before : Shri M. Balaganesh, Accountant Member, and
Shri S.S. Viswanethra Ravi, Judicial Member
I.T.A Nos. 714 to 718/Kol/2011 A.Ys 2001-02 to 2005-06
D.C.I.T, C.C-I, Kolkata Vs. Sunita Khemka
For the Appellant/Department: Shri Sanjit Kr. Das, JCIT,ld.DR
For the Respondent/ Assessee: Shri Manish Tiwari, FCA, ld.AR
Date of Hearing: 14-10-2015
Date of Pronouncement: 28-10-2015
ORDER
SHRI M.BALAGANESH, AM
These appeals of the revenue arise out of the order of the Learned CITA in Appeal No. 530/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011,Appeal No. 526/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011,Appeal No. 527/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011,Appeal No. 53 1/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011 and Appeal No. 532/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011 for the Asst Years 2001-02 to 2005-06 respectively against the orders of assessment framed u/s 153A read with section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).
2.The only issue to be decided in these appeals are that whether the assessee is eligible to claim long term capital gains on sale of shares during Asst Years 2001-02 to 2004-05 at a concessional rate of 10% and exemption u/s 10(38) for Asst Year 2005-06 in respect of sale transactions routed through recognized stock exchange.
3.The brief facts of this issue is that the assessee sold the shares of M/s Emkay Consultant Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 18,37,287/- for Asst Year 2001-02 ; sold shares of M/s Commitment Finance Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 19,24,910/- for Asst Year 2002-03 ; sold shares of M/s Emkay Consultant Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 15,67,901/- for Asst Year 2003-04 ; sold shares of M/s Commitment Finance Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 16,58,020/- for Asst Year 2004-05 and sold shares of M/s Limtex Investment Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 13,16,420/- for Asst Year 2005-06. The assessee had submitted the details of purchase and sale of the shares in aforesaid companies before the Learned AO and stated that the payment has been made to the stock brokers through account payee cheque from the disclosed bank accounts. Admittedly, these shares were held as an Investment including the other shares by the assessee. During the course of assessment proceedings, the details of contract notes for purchase and sale of shares were duly filed by the assessee. The entire sale consideration for sale of these shares were received by the assessee from the stock brokers through account payee cheques. The assessee had also duly paid the Securities Transaction Tax (STT) during Asst Year 2005-06 at the time of sale of shares. The Learned AO doubted the computation of capital gains on sale of the aforesaid shares by stating that the shares of said companies could not have been sold at the prevailing market rates as per the Calcutta Stock Exchange and treated the long term capital gains as bogus and held that it is only assessee’ s own unaccounted money that had surfaced in the form of long term capital gains with the connivance of the brokers and accordingly brought to tax under the normal provisions of the Act instead of concessional rate of tax applicable to long term capital gains. On first appeal, the assessee pleaded that there was a search and seizure operation conducted u/s 132 of the Act on Aparna Group of cases which includes assessee herein, wherein, no incriminating materials with regard to the subject mentioned issue before us was found by the search party. The Learned CITA duly appreciated the contentions of the assessee and rejected the contentions of the Learned AO in this regard by placing reliance on the decision of this tribunal wherein addition made towards similar grounds of share transactions in the hands of the assessee’s husband Shri.Anil Khemka were deleted in ITA Nos. 901 to 905 / Kol / 2009 dated 28.1.2010 for the Asst Years 2001-02 to 2005-06. Aggrieved, the revenue is in appeal before us on the following grounds:-
Grounds of Appeal for the A. Y 2001-02
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.18,3 7,287!- earned out of selling the shares of M!s. Emkay consultants Ltd as such as shown by the assessee and tax it as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2.The department craves leave to add, modify or alter any of the ground(s) of appeal and!or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2002-03
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.19,24,910!- earned out of selling the shares of M!s. Commitment Finance Ltd as such as shown by the assessee and tax it as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2.The department craves leave to add, modify or alter any of the ground(s) of appeal and!or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2003-04
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.15,67,901/- earned out of selling the shares of M!s. Emkay consultants Ltd as such as shown by the assessee and tax it as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2.The department craves leave to add, modify or alter any of the ground(s) of appeal and!or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2004-05
1. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.16,58,020!- earned out of selling the shares of M!s. Commitment Finance Ltd as such as shown by the assessee and tax in as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2. The department craves leave to add, modify or alter any of the ground(s) of appeal and/or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2005-06
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.13,46,420/- earned out of selling the shares of M/s.Limtex Investment Ltd as such as shown by the assessee and allow exemption u/s.10(38) of the I.T Act without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2. The department craves leave to add, modify or alter any of the ground(s) of appeal and/or adduce additional evidence at the time of hearing of the case.
4. Shri Sanjit Kr.Das, JCIT, Sr. DR argued on behalf of the revenue and Shri.Manish Tiwari, FCA, the Learned AR argued on behalf of the assessee.
5. As the issues involved in all these years are identical in nature, they are taken up together and disposed off by this common order for the sake of convenience and brevity. 6. We have heard the Learned AR and find that the Learned CIT (A) had relied on the decision of this tribunal rendered in the case of husband of the assessee. The operative portion of the Learned CIT(A) order is reproduced herein below:-
Para 6 to 6.4 of the ld. CIT(A) ’s order
“6. I have carefully considered the submissions of the appellant and the assessment orders. I have also carefully perused the assessment orders in respect of Sri Anil Kr. Khemka and the order of the ITAT in the case of Sri Anil kr. Khemka. I find that there is an uncanny resemblance between the assessment orders passed in the case of the appellant and in the case of Sri Anil Kr. Khemka-
(1) All those orders are passed by the same AO on the same date;
(2) The assessment orders are identically drafted. Identical reasons have been given by the AO and even the wordings are identical;
(3) The name of the shares on which long term capital gain has been claimed are identical in each of the assessment years;
(4) The names of the brokers through which the transactions have been made are also identical.
6.1 Hon’ble ITAT, Kolkata in its order dated 21.01.2010 (supra) in the case of Shri Anil Khemka has made the following observation:
“Ïn all these assessment years, the assessee has valued all the shares at cost and offering the income of trade of these shares either as short-term capital gains or long term capital gains as the case may be. It is further observed that the shares at which the assessee has purchased/sold are authenticated by the quotations of the Stock Exchange and the transactions are routed through the bank accounts and properly recorded in the respective companies. Keeping in view of the facts and circumstances of the case, we find no justification in treating the said transactions as bogus by the AO nor treating the same as business in the nature of adventure in the nature of trade by the ld. CIT(A) is not justifiable. Therefore, we set aside the orders of the revenue authorities on this issue and direct the AO to treat the long term capital gains as claimed by the assessee. Hence, the ground nos.1 and 2 raised by the assessee are allowed.”
6.2 The appellant has submitted all the original contract notes of sale and purchase, copies of the bills, bank statements in respect of the purchase and sale of shares. All payments were made and received through account payee cheques drawn by the concerned Stock Brokers of Calcutta Stock Exchange and duly recorded in the bank accounts and regular Books-of-A/cs. All the shares sold were transferred through Demat Account or handed over physically to concerned brokers. The price at which the shares have been sold is also published in the daily Quotation issued by the Calcutta Stock Exchange. The shares sold after 1st October’04 pertains to the assessment year 2005-06. Security Transaction tax has been deducted from the sale proceeds.
6.3 The decisions of the Hon’ble Calcutta High Court in the case of CIT-Vs- Carbo Industrial Holdings Ltd (244 ITR 422) and CIT –Vs- Emerald Commercial Ltd (250 ITR 549) are also relevant to the issue where the Hon ’ble Court has held that where the payments are made by Account Payee Cheques and the existence of the brokers is not disputed the assessee cannot be punished for the default of the brokers and share transactions cannot be held to be bogus. The Hon’ble ITAT, Kolkata in the case of Rajkumar Agarwal (ITA 1330/Kol/2007 dated 1 0/08/07) has held that when purchase and sale of shares were supported by proper Contract Notes, deliveries of shares were received through demat accounts maintained with various agencies, the shares were purchased and sold through recognised broker and the sale considerations were received by Account Payee Cheques, the transactions cannot be treated as bogus and the income so disclosed was assessable as LTCG.
6.4 In the assessment orders under consideration the AO has not considered any of these facts. He has treated the transactions as bogus only on the basis of the suspicion that the difference in purchase and sale price of these shares are unusually high. It is a settled law that assessment cannot be made on the basis of suspicion or surmise. The AO has not brought any material on record to support his finding that there has been collusion/connivance between the broker and the appellant for the introduction of its unaccounted money. In view of the decisions of Hon’ble Kolkata High Court and Hon’ble ITAT, Kolkata discussed supra, and also respectfully following the decision of Hon’ble ITAT, Kolkata dated 28.01 .2010 in ITA No.901 -905, Kol 2009 in the case of Sri Anil Kr. Khemka (husband of the appellant) I hold that the AO is not justified in treating the long term capital gain as bogus. I direct the AO to treat the long term capital gain as claimed by the appellant and tax them at the rates applicable for assessment years 2001 -02 to 2003-04 and for assessment year 2005-06 exemption u/s. 10(38) should be allowed.”
6.1 In view of the aforesaid clear findings of the Learned CITA and respectfully following the co-ordinate bench decision of this tribunal in the case of assessee’ s husband on the similar facts and circumstances, we are not inclined to interfere with the order of the Learned CITA and accordingly, the grounds raised by the revenue are dismissed.
7.In the result, the appeals of the revenue are dismissed.
THIS ORDER IS PRONOUNCED IN OPEN COURT ON 28 /10/2015

Also see the case of Paresh Gandhi ITA No:-5706/M/2013[/color]

Ramila P Shah

[move]http://indiankanoon.org/doc/146735280/[/move]

M/S Vanshee Builders & Developers ... vs Assessee ITA No.386/Bang/2012

IT : Continuance of proceeding by ICAI after settlement of matter between complainant and respondent-chartered accountant before CLB were perverse

[/glow]
[2013] 36 taxmann.com 402 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Institute of Chartered Accountants of India
v.
K.K. Sindwani

IT : While examining an application for stay of demand, Assessing Officer must
pass a speaking order and extend opportunity of personal hearing, if sought by
assessee[2013] 36 taxmann.com 73 (Karnataka)
HIGH COURT OF KARNATAKA
Smt. Joshna Rajendra

Income Tax Appellate Tribunal - Agra
Bhagwan Agrawal, Agra vs Department Of Income Tax on 12 July, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL,

AGRA BENCH, AGRA

BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND

SHRI A.L. GEHLOT, ACCOUNTANT MEMBER

M.A. Mo. 04/Agra/2012

(Arising out of M.A. No. 02/Agra/2011 & ITA No. 468/Agra/2004) Asstt. Year :
2001-02

Income-tax Officer, vs. Shri Bhagwan Agarwal, 2(4), Agra. D-31, Pratap Nagar,
Agra. (PAN: ADMPA 9968 J).

(Applicant) (Respondent) Applicant/Deptt. by : Shri Waseem Arshad, Sr. D.R.
Assessee by : Shri Nitesh Agarwal, Advocate Date of hearing : 03.07.2013 Date of
pronouncement of order : 12.07.2013 ORDER
*********************************contd
*************************************
13. We may also note here that the conduct of the assessee and his counsel Shri
K.G. Agarwal, C.A. in concealing the relevant and material fact from the
Tribunal would amount to professional misconduct on the part of the Chartered
Accountant. The Chartered Accountant has not only the duty to defend the case of
litigant to the best of his ability, but equally has duty to maintain dignity
and decorum of the courts. He has to assist the Bench as per law in arriving at
the just decision in the matter. Shri K.G. Agarwal, C.A. consciously and
deliberately in the garb of legal advice has concealed and suppressed the
relevant and material 25 MA No.04/Agra/2012

facts from the Tribunal while filing miscellaneous application and arguing the
same before the Tribunal. Therefore, his conduct is not above the board and
requires action by the President, Institute of Chartered Accountant of India.
We, therefore, recommend a disciplinary action against Shri K.G. Agarwal,
Chartered Accountant. Copy of this order be forwarded to the President,
Institute of Chartered Accountant of India, ICAI Bhawan, Indraprashtha Marg, New
Delhi- 110 002 for necessary action in this regard. Copy of this order be also
forwarded to the Chairman CBDT, New Delhi to take necessary action in the
matter. We also direct the ld. CIT-I, Agra to place copy of this order before
the Criminal Court where the criminal prosecution of the assessee is pending on
the matter in issue for appraisal of the concerned court and ensure
implementation of this order.

**contd

Govt wants judges fined for frequent adjournments
NEW DELHI: The government has suggested that higher judiciary impose fines on judges for allowing frequent and too many adjournments, a move which can potentially ensure swift punishment for those guilty of heinous crimes, early release of undertrials who may be found innocent as well as respite for those who have been embroiled in interminably long litigation over civil disputes.

The government has been holding consultations with the Supreme Court to urge the latter to ensure that the amendment made under Section 309 of the Code of Criminal Procedure (CrPC), which capped the adjournments permissible in a case at three, are implemented. It suggested that the higher judiciary consider imposing fines on judges infringing the three adjournment ceiling.

In fact, in cases of heinous crimes like rape, the amended Section 309 of CrPC lays down a timeframe of two months for the completion of inquiry as well as trial.

Sources said the law ministry has held several rounds of consultations with the apex court, and expressed satisfaction with the response it received to the proposal for strict enforcement of Section 309 of CrPC, limiting the number of adjournments before the subordinate judiciary.

The apex court too has in a number of recent judgments frowned upon the trend among subordinate judiciary to allow frequent adjournments: something which has been identified as one of the main factors behind the huge pendency of cases. The government is hopeful that SC may take steps shortly to ensure that the guidelines under the amended Section 309 are no longer disregarded by judges.

Section 309 of CrPC provides that "every inquiry or trial shall be held as expeditiously as possible and the recording of examination of witnesses shall be continued on day-to-day basis unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded".

The government later incorporated some more guidelines relating to adjournments which specified that "no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party and even in cases where the pleader of a party is engaged in another court, shall not be a ground for adjournment".

The other important guideline said if a "witness is present in court but a party or his pleader is not present or the party or his pleader though present in court is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit". Sources said some of these guidelines may be notified soon so that it becomes compulsory for the subordinate judiciary to enforce them.

Already, the law ministry has drawn up a list of other important amendments carried out in CrPC in the recent past but which are not being enforced by the lower judiciary.

For instance, a new Section 436A has been inserted, which provides that "if an accused has spent half of the maximum period of imprisonment specified for that offence, not being an offence for which the death punishment has been specified as one of the punishment, he shall be released by the court on his personal bond with or without sureties".

Another amendment in Section 437 of CrPC provides that "if the accused had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years, such person shall not be granted bail".

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.

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

Yoginder Kumar Sud vs. President, ITAT (P&H High Court)
Writ to restrain ITAT Members from discharging statutory functions not
maintainable
Yoginder Kumar Sud Versus President Income Tax Appellate Tribunal and others
2013 (5) TMI 238 - PUNJAB & HARYANA HIGH COURT
The Petitioner, a Chartered Accountant practicing before the Amritsar Bench of
the Tribunal, filed a Writ Petition alleging that he was facing a lot of
harassment at the hands of the Judicial Member (Shri. H. S. Sidhu) and the
Accountant Member (Shri. B. P. Jain) of the Amritsar Bench. He alleged that the
said Members were totally prejudiced against him as he had made a complaint
against the Judicial Member to the Tribunal and also because he had not been
able to meet the "expectations" and "illegal demands" of the said Members. It
was also alleged that the Bench was delaying the matters of the Petitioner or
passing unreasoned orders or by totally ignoring him. A Writ of Mandamus was
sought for restraining the said Judicial and Accountant Members of the Amritsar
Bench from discharging their functions. HELD by the High Court dismissing the
Petition:



It appears that the writ petition is to settle scores which the Petitioner might
have raised during the course of his conduct as representative of the assessees.
The Petitioner has asserted that he is not able to meet the expectations and
illegal demands raised by the Members but there are no details as to when and
how the demands were raised. Not only the writ petition is bereft of any
material particulars but also the Petitioner has no right to claim mandamus for
restraining an authority constituted under the Act from discharging the
functions entrusted to it by the Statute. The present writ petition is gross
abuse of process of law and, therefore, it is dismissed.