Adjournments

[CA.BHUPENDRASHAH]

IT : CAs & lawyers can't seek adjournments on the ground that objectivity of ITAT member is not beyond doubt even if petition in that behalf is pending before the jurisdictional High Court. [/color]
CA/Advocate seeking adjournment for the
reason that he doesn't want to appear before a particular Bench/member of ITAT
commits 'contempt of court' by 'forum shopping' or 'de facto boycott' of a
judicial officer. It is not open to CA/Advocate/bar association/group of ARs to
seek adjournments on the ground that they have issues against a particular ITAT
member as this amounts to de facto boycott of a judicial officer. No adjournment
of hearing by ITAT for the reason that CA/Advocate doesn't want to appear before
a particular Bench/member

Held

(Per Judicial Member)

• I.T.A.T. is creation of Income Tax Act through section 252 and under section
252 the Central Government shall constitute an Appellate Tribunal to adjudicate
the issues raised between the assessee and the Income-tax Department.

• The professionals either Advocates or Chartered Accountants can be engaged to
prosecute the appeals on behalf of the assessees in a manner in which the
assessee wants.

• Infact after filing the Power of Attorney, the professionals (Advocate or
Chartered Accountant) will step into the shoes of the assessee and they will
represent the case in a manner beneficial to the assessee.

• If a particular Advocate or a Chartered Accountant is not comfortable or has
reservation with a particular judicial forum, it is his sweet will for making a
representation before the said judicial forum; but for that reason the judicial
forum cannot be forced to adjourn all the matters for an unlimited period where
the stakes of the revenue are substantially involved.

• The I.T.A.T. is created to adjudicate the disputes amongst the Income-tax
Department and the assessee.

• If a particular advocate has some reservation with a particular Bench, it is
for him to take a decision in this regard.

• Similar is the position with regard to the assessee as he has to take a final
decision with regard to the appointment of his advocate or representative to
represent his case before the judicial authority.

• The judicial authority, be it may be the Tribunal are concerned about the
material placed before them while adjudicating the issues involved irrespective
of the personalities of the Advocates appearing before him representing the case
of the parties.

• In the light of these facts, when the Judicial Member has already withdrawn
his order of recusal from hearing of the cases being represented by Shri SKG,
Advocate or Shri PKK, C. A., there is no valid reason for the adjournment on the
ground that the Judicial Member has recused himself from hearing the cases of
Shri SKG, Advocate and more so in the light of the facts that about 25% of the
appeals pending before the Bench are being represented by Shri SKG, Advocate or
Shri PKK, C. A.

• If Shri SKG, Advocate and Shri PKK, C. A. have any reservation with the Bench
comprising of Judicial Member, they may take independent decision with regard to
their representation before the Bench.

• But for the reason that they do not want to represent the cases, the hearing
cannot be adjourned and assessee would be at liberty to make some other
arrangement to prosecute his case in effective manner.

• In the instant case the Judicial Member has already withdrawn his recusal from
hearing the case of Shri SKG, Advocate vide order dated 08/02/2013 passed in the
case of Onkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012.

• Therefore, the appeals being represented by Shri SKG, Advocate and Shri PKK,
C. A. can be heard by the Bench comprising of the Judicial Member and the
assessee would be at liberty to make some alternate arrange if Shri SKG,
Advocate or Shri PKK, C. A. do not wish to appear before the said Bench.

• It is for the assessee to take a decision in this regard as through whom he
wants to get his matter represented.

• There is no dearth of tax experts/Tax Advocates in our country more
particularly in Lucknow and the assessee is at liberty to hire the services of
any best professionals but for the reason that a particular Advocate or the
Chartered Accountant does not want to appear before the Tribunal, the hearing of
the appeal cannot be adjourned.

• Vide order dated 27-5-2013, it was made very clear to the assessee that since
the matter has been received from Hon'ble High Court on remand for disposal
within a period of six months, no further adjournment would be granted.

• Despite these facts, the assessee moved the application for adjournment.

• It is also pertinent to mention here that on receipt of the last order dated
27-5-2013 of the Tribunal, the assessee moved to the High Court for
clarification through application dated 30th May, 2013.

• The Hon'ble High Court passed an order dated 5th March, 2013 and the assessee
remained silent till 30th May, 2013.

• Once the Tribunal has taken a tough stand and adjourned the hearing with the
last opportunity with the certain directions, the assessee moved an application
to the High Court for clarification on 30th May, 2013.

• The clarification sought is only with regard to the words 'on merit on other
points'. The assessee through its application requested the Hon'ble High Court
to insert the word "and" between the words "on merit and on other points."

• No confusion was ever raised with regard to the interpretation of these words
by the Tribunal but this application was made only to create the ground for
seeking adjournment before the Tribunal.

• Therefore, it appears that the assessee is trying to seek adjournment for one
reason or the other in order to delay the disposal of the appeal pursuant to the
direction of Hon'ble High Court.

• In the light of these facts, there is no merit in the request of the
adjournments moved by the assessee. Accordingly adjournment request rejected.

Per Accountant Member

• It is not open to even any bar association or other interest groups also, much
less an individual lawyer or group of representatives – as is the case before
us, to hold functioning of this Tribunal to ransom by seeking adjournments on
the ground that they have some issues, howsoever legitimate as they might think
these issues are, against a particular judicial officer.

• That is de facto boycott of a judicial officer and a strike against the
judicial office he holds.

• As a matter of fact, as Hon'ble Supreme Court has observed, such boycotts or
strikes are nothing but a contempt of court and a court itself also should not
become privy to this by "adjourning the case on the ground that lawyers are on
strike".

• The decisions to take whether or not a judicial officer should hear a
particular case or not is to be taken by the judicial officer or by the well
settled administrative guidelines and judicial traditions.

• Just because, for whatever reasons, a crisis situation has been deprived of an
appropriate solution, no direct or indirect interference in judicial powers of a
judicial officer can be justified. No short cuts are permissible for anyone –
shorts cuts such as adjourning the cases on the board or causing adjournment of
such cases, or short cuts resulting in compromising with independence and
dignity of a judicial officer.

• The functioning of this Tribunal obviously cannot go on when a lawyer, or a
group of lawyers, seeks an adjournment on the ground that objectivity of the
judicial officer is not beyond doubt and that there is a petition to that effect
is pending before higher authorities.

• No judicial institution can be allowed to function if these reasons are
treated as good enough to grant adjournments.

• A judicial officer, when performing judicial duties, is not performing in a
swaymvar; he is discharging solemn duties of rendering, impartially and
fearlessly, justice pure and simple. '

• Representatives of taxpayers cannot be allowed to choose the judicial officers
for adjudicating upon their grievances.

• A judicial officer need not bother about how representatives of the taxpayers
will react to his judgments, or how will even his own colleague on multi member
bench view his approach to the judicial work.

• There should be harmony in functioning but not at the cost of independence.

• There should be healthy respect for each other but not at the cost of
betraying one's own conscious and commitment to the time-tested values.

• There should be brotherhood amongst all but not at the cost of damage to the
public good.

Related case

Onkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012.

■■■

[2013] 34 taxmann.com 296 (Lucknow - Trib.)

IN THE ITAT LUCKNOW BENCH 'A'

Kanpur Plastipack Ltd.

v.

Income -tax Officer, Range - 6(2), Kanpur

SUNIL KUMAR YADAV, JUDICIAL MEMBER
AND PRAMOD KUMAR, ACCOUNTANT MEMBER
IT APPEAL NO. 1002 (LUCK.) OF 2006
[ASSESSMENT YEAR 1997-98]
JUNE 21, 2013

S.K. Garg and Pradeep Kumar Kapoor for the Appellant. K.M. Dixit for the
Respondent.
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[CA.BHUPENDRASHAH]

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.

[CA.BHUPENDRASHAH]

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".