mistake of High Court judge is not mistake at all- And mistake of honest member

[Ashish kumar]

Yes, friends, it is true that a mistake by a sitting Judge of a High Court is often treated differently from even a minor clerical mistake committed by a Judicial Member of the ITAT. Recently, a Judge of a High Court made strong observations against an honest Judicial Member of the ITAT in the Patanjali matter.
The observations, in my respectful view, ought to have been made only after examining the complete facts and circumstances of the matter. The concerned Judicial Member of the ITAT is known to be a person of integrity. He has consistently treated individual assessees and members of the Bar with dignity and respect and has been appreciated for delivering orders promptly, sometimes even on the date of hearing.
Before making adverse observations against the Judicial Member, the High Court could, in my view, have called for the complete records of the Patanjali matter from the ITAT and ascertained the circumstances leading to the discrepancy. As I understand it, the issue was essentially a mismatch between the date of hearing and the date of pronouncement, apparently arising from a clerical error at the level of the Personal Staff (PS).
If that is indeed what happened, the question arises whether such a clerical discrepancy, without anything more, justified adverse observations against the Judicial Member personally. The principle of strict liability, when applied without examining the surrounding circumstances, can sometimes result in an individual being held responsible for an error that may not have been committed by him.
I would also like to draw attention to another legal issue arising from a judgment of the same Judge of High Court in the Sahara matter, reported at 355 CTR 211, concerning the situs of an appeal.
In that matter, the High Court took a view that an administrative order of the President of the ITAT would decide the situs of appeal in taxation matters, the judge has conveniently ignored the law declared by the Supreme Court in ABC Papers Ltd., where the Supreme Court dealt with the question of jurisdiction based on the situs of the Assessing Officer.
There is, further, an important constitutional issue concerning the scope of judicial review of orders passed by a judicial forum. The Supreme Court, in the nine-Judge Bench decision in Naresh Shridhar Mirajkar v. State of Maharashtra (1966), considered the whether a judicial order can be challenged in writ. The judgment is frequently cited for the proposition that a judicial order of a competent court is not ordinarily amenable to challenge under Article 32 merely on the ground that it violates a fundamental right.
These issues therefore raise a larger question for consideration: where should the line be drawn between holding a Judicial Member accountable for a genuine judicial error and attributing to that Judicial Member a clerical or procedural mistake committed at another level?
In my respectful view, every judicial officer is accountable for his or her orders, but fairness also requires that responsibility be fixed only after the complete facts and records have been examined.
I leave it to my friends and readers to examine these issues and form their own views.
There are several other orders of the same Judge which, in my opinion, raise questions concerning the settled position of law. I intend to discuss those matters in my second write-up.
If you want, I can also make this more forceful and legalistic, while retaining a dignified tone suitable for publication as a professional tax-law post.