Late Shri. T. V. Rajagopala Rao, Ex-President, ITAT: A Tribute

Posted on December 18, 2011 by editor Posted in All Information, ITAT related — 1 Comment ↓

With these words I offer my deepest and sincere condolences on behalf of the House and entire Income Tax Department. Thank you for giving me this opportunity.

Hon’ble President Shri R. V. Easwar, HorTble D. Manmohan, Vice President of the ITAT, other Members of the Tribunal, Departmental Representatives and Members of the Bar –

Today we have assembled here to mourn the said demise who was one of the finest Judges of ITAT. So much is mentioned about the qualities which he had about his simplicity, transparency in the Court and the way in which he put everybody at ease so that there was no mental pressure on any one and the juniors would also argue with the same ease as the seniors would do. I would also single out some other qualities of Shri Rajagopala Rao. He was meticulous in details and when we were arguing, he would carefully take note of every word and which in turn would be reflected in his orders. Nobody could influence him in his Judgements and his approach gave a good deal of honour and dignity to the Income Tax Tribunal. He delivered very studied judgement and in some of them I also had the good fortune to appear. In one matter I argued for 2-3 days and he rendered a land mark judgment in the case of surrender of tenancy rights whether it would attract capital gains or not. He drew a distinction between Statutory tenancy and contractual tenancy. We all went into unchartered domain of the Rent Act and he gave a very classic Judgement showing the distinction between the two features of tenancy and ultimately came to the conclusion which was against the assessee. Of course, we went to High Court and the judgement was overruled in the High Court and later Supreme Court also upheld the High Court’s view. But what I am mentioning is that it was a pleasure to argue before some one who could appreciate the counsel’s citations and go through various judgements in order to opine whether there is any distinction between the contractual tenancy and statutory tenancy. It was a great experience for me in that I had appeared before him for three days in that Special Bench. Because of paucity of time I don’t want to discuss other important judgements of his. Justice Holmes has said that the only thing certain in life is death. Geeta also says ‘JATASYA HI DHRUVAM MRITYU’….We know all this but still we feel the demise of some one near to us and feel the grief for the passing of some one with whom we have worked. We can send our deepest condolence to his family members. MAY HIS SOUL REST IN PEACE.

Speech of Shri S. E. Dastur Past President,  ITAT, Bar Association

Mr.President, Ladies and Gentlemen,

I admire Mr.TVR, as he was popularly referred to, for 5 great qualities which made him an outstanding judge. He was patient. He let Counsel argue without undue interruption. As has already been pointed out, he took detailed notes of arguments advanced before him which were reflected in his judgment wherein he dealt with them. He decided on the basis of arguments advanced before him by both the sides and his judgments did not reflect chamber research which was not put to the parties in the course of the hearing. It is often one of the major regrets of Counsel that the basis on which an issue was decided against him was not put to him as, if it had been so put, he may have been able to meet it successfully. Lastly, Mr.Rajagopala Rao was always considerate specially to juniors whom he encouraged. He served as President for over 5 years and was always conscious of looking after the convenience and just requirements of the Bar and the litigant.
He practiced as a lawyer from 1961 to 1973 when he was appointed as a District Munsiff which is a post akin to the post of a first class Magistrate. He thereafter became an Additional District and Sessions Judge. In 1980 he was appointed as a Member of the Income-tax Appellate Tribunal and he recollected that Justice Venkatachaliah, who was the Chairman of the Selection Committee, told him "You do not have much tax experience but you have all the qualities of being a good judge" – and how right he was. The statement evidenced two things: 1) Justice Venkatachaliah was as good a judge of men as of cases and 2) the fact that to be a good judge one does not have to be brilliant or an outstanding lawyer or even claim great knowledge – in fact sometimes it is a hindrance. After all it is the task of the advocates on either side to put the law before the judge and a judge has to decide which of the two points of view is correct – a task more difficult than just arguing a case and a task which Mr.Rajagopala Rao performed admirably. Mr. Rajagopala Rao was humble and underplayed his vast knowledge. He once told me "I have to listen and it the duty of Counsel to tell me what the law is." He had an excellent judicial demeanour.

He carried on with his work though he was afflicted with diabetes. He had to take insulin at regular intervals. Once when we were arguing a matter he halted proceedings simply stating that they would re-assemble after 15 minutes. I thereafter learnt for the first time that this was done so that he could have his shot of insulin. He was conscious of the sanctity of the judicial time and he did not hesitate to hear a matter in the afternoon if the hearing was not concluded in the pre-lunch session.
A very interesting event took place on October 5, 1995. The Bombay IT Bar passed a resolution at an Extraordinary General Body Meeting regarding the integrity of a certain member of the Tribunal. The resolution was forwarded to Mr. Rajagopala Rao as the President of the Tribunal. Unfortunately, a President is not empowered to take direct disciplinary action against a member. So he immediately did the next best thing, he transferred him. The Bar at that place objected on the ground that the place of transfer was not a dumping ground for a member suspected to lack judicial probity. He, therefore, transferred him to another place from where the member retired. A procedure for adequately dealing with such cases, or what happened about 3 years ago in the eastern part of the country has to be evolved.

There was another incident which showed that he could take tough decisions. A matter came up for hearing before a Judicial Member who had earlier in the very same matter expressed a view adverse to the assessee. Counsel submitted before the Division Bench that the Judicial Member should not hear the particular appeal because he had already taken a view in that very matter which had now come up for re-hearing. The learned Judicial Member said that it was irrelevant and that he would hear and decide the appeal. A representation was made to the President who heard the objection for over 3 hours and passed a detailed order to the effect that the Judicial Member should not be on the Bench hearing the appeal. Unfortunately, sometimes a request by Counsel that a member should not hear a particular case is taken as a personal affront. It may perhaps be advisable if members, particularly those who are nominated on a Special Bench, recuse themselves in case they have earlier taken a view on the issue under consideration, as what the Special Bench decides may become binding.

Mr.Rajagopala Rao was a man of courage. My good friend Mr. Shivaram, who has always been so pro-active in all matters affecting the Bar, has already  referred  to  the  way in which  he  stood  up  to  the  Central Government to preserve the powers of the President. It was an act of courage and independence.

Mr. Rao’s regard for propriety is shown by his approach to where the headquarters of the President should be. The headquarters of the Tribunal and of the President were in Bombay till 1987 when the then President, shifted the headquarters of the President to Delhi. Thus, the headquarters of the Tribunal were in Bombay but the head was quartered in Delhi! I understand that to continue to sit in Delhi periodic special dispensation has to be obtained from the Central Government which is one of the parties in every matter adjudicated by a member. Mr. Rajagopala Rao fortunately assumed charge in Bombay and stayed here till his retirement. He did this even though prior to becoming a President he had not, in so far as I can recollect, sat in Bombay. Unfortunately, the two Hon’ble Presidents who succeeded him did not share his view. I am hot pitching for Bombay because we are of the Bombay ITAT Bar but because, if I recollect correctly, Bombay city is said to contribute well over 30% of the tax revenue of the country.
Most unfortunately, Mr. Rao’s later years were marred by prolonged ill-health – but he carried on gamely. I salute him. I am sure his exemplary behaviour will serve as a beacon for all of us.

Speech of Shri Dinesh Vyas. Senior Advocate, Past President of Income Tax Appellate Tribunal Bar Association. Mumbai

We have assembled this morning to mourn the sad demise of Shri T.V. Rajagopala Rao, former President of the Income Tax Appellate Tribunal. Shri Rao was the President of the Tribunal from 9/8/1994 to 8/12/1999, a solid and long period of five years. His was a very successful presidency whose fruits are being enjoyed by the Tribunal and the tax professionals even today.
I did not appear before him even once during his presidency, but I had a great opportunity and privilege to interact with him in certain matters which were of fundamental importance and far reaching implications to the Tribunal as an Institution and also as an integral part of the Indian judiciary.
There are two significant events which I would like to share with you all, this morning. First, as soon as Shri Rao became the President and came to Mumbai, he expressed to me his desire to make a courtesy call on Shri Nani A. Palkhivala, the doyen of the Indian Tax Bar. Although, Shri Palkhivala was willing to come to the Tribunal for this purpose, Shri Rao with his humility insisted that he only should go to meet Shri Palkhivala in his office and seek his blessings and guidance. I took Shri Rao to Shri Palkhivala and the meeting lasted almost for an hour during which pleasantries were exchanged, views on different legal issues were expressed and then Shri Rao requested Shri Palkhivala’s specific advice upon the taking over of the Presidentship of the Tribunal. Shri Palkhivala told Mr. Rao that Income Tax Appellate Tribunal is a very important Tribunal – in fact a Mother Tribunal – and has to deal with large amounts involving crores and crores of Rupees. In this background, it was for a definite purpose of keeping it away from political influences that from the very inception the Headquarters of the Tribunal were stationed not at New Delhi but at Mumbai. Shri Palkhivala noted that in the then recent past, the President had functioned from New Delhi and that a trend was slowly developing towards political interference from time to time. Shri Palkhivala, therefore, advised Shri Rao to function as a President of the Tribunal only from Mumbai and to ensure that the Headquarters of the Tribunal remain strongly established in Mumbai alone. When we returned from this meeting with Shri Palkhivala, Shri Rao immediately told me in the car itself that he was so glad that he met Shri Palkhivala and that he has instantaneously vowed to function as a President from Mumbai alone. I do strongly believe that Shri Rao took the correct decision, he acted upon it during his full term, he preserved from here the independence and integrity of the Tribunal with courage and confidence and was therefore, able to shape the future of the Tribunal in a much better way.
The second significant event of his presidency is one of the most important developments for the Tribunal in its entire existence. This is his filing a petition against the Law Secretary which ultimately resulted in the Supreme Court laying down law of great and unprecedented consequences for the functioning of the Tribunal in ITAT vs. V.K. Agarwal (235 ITR 175). This decision firmly placed the Tribunal on a high pedestal in the Indian judicial system.

The facts leading to this landmark Judgment need to be noted. In the case of one Smt. Neerja Birla, the Tribunal Bench consisting of a Judicial Member (Shri R.V. Easwar) and an Accountant Member (Shri M.V.R. Prasad) heard the Appeal. The Judicial Member dictated his judgment in August 1997 and signed it. However, the Accountant Member expressed his reservations to his learned Brother; both the Members met and discussed the issues and then the Judicial Member agreed with the view of the Accountant Member and requested him to prepare the Order on those agreed lines. The Accountant Member thereafter prepared the Order with which the Judicial Member fully agreed and thus the final Order dated 23/10/1997 came into being upon both signing it.

The Law Secretary (Shri V.K. Agarwal) came in possession of the above draft Order and the final Order and on the basis thereof issued a Show-Cause-Notice to the President (Shri Rao). The Law Secretary took the position that there were two contradicting Orders which disclosed "judicial impropriety of the highest degree" and that the President may suggest an action that may be taken and the Member against whom it may be taken. The Members sent their replies to the President clarifying the above facts and defended their judicial actions and conduct and also conveyed to the President that the letters of the Law Secretary to the President should be looked upon as a gross interference in the judicial discharge of their duties.

Thereafter, Shri Rao as the President of the Tribunal filed a Petition before the Hon’ble Supreme Court and brought to its attention the above facts. Shri Rao requested me to appear and argue before the Supreme Court which I did. Shri K.K. Venugopal, former Attorney General of India and Shri Altaf Ahmed, Solicitor General of India appeared on behalf of the Law Secretary and the Government of India. I argued before the Supreme Court that the Law Secretary had interfered in the judicial functioning of the Tribunal and had thereby committed contempt of the Tribunal whereas from the other side attempt was made to defend and justify his actions.
The Supreme Court in its judgment in ITAT vs. V.K. Agarwal (235 ITR 175) held that the letter from the Law Secretary which questioned the bonafides of the Members of the Tribunal and asked them to explain the judicial Order tampered with the judicial process and amounted to interference with judicial decision making. The letter of the Law Secretary insinuated a dishonest conduct on the part of the two Members on the basis of a confidential draft Order which was unwarranted. The Supreme Court held that the conduct of the Law Secretary amounted to gross Contempt of Court. When I was about to conclude my closing reply, Mr. Agarwal walked into the well of the Court and tendered his unconditional apology and regret. He was told by the Hon’ble Court that it was too late and that he had gone far too beyond his official duties. The Supreme Court did not accept the apology of the Law Secretary and having held him guilty punished him for criminal contempt with maximum imposable fine.
This was the finest hour in the life of Shri Rao which he later told me while thanking me for my efforts. In filing the above Petition before the Supreme Court, Shri Rao acted with great courage and with a great sense of responsibility towards the Tribunal and the Members constituting it. He ensured that the authority and dignity of the Tribunal is maintained and preserved at all cost. It is from then that the Tribunal is being regarded as an integral part of the Indian judiciary and for most purposes is regarded as a "Court".
We at the Bar acknowledge the contributions of Shri Rao with great respect. His role in asserting and affirming the independence of the Tribunal as a judicial body is unmatched and unparalleled. He will be long remembered for the courage that he displayed and for the enduring benefit which he brought to the Tribunal as a judicial institution.
We all pray that his Soul may rest in peace.