Bill To Appoint ITAT Members For 5 Years Will Destroy Independence Of ITAT

A Bill called “The Tribunals, Appellate Tribunals and Other Authorities (Conditions of Service) Bill, 2014” (pdf) has been introduced in the Rajya Sabha. The Bill seeks to regulate the terms of appointment and service of the Members of several Tribunals including the Income Tax Appellate Tribunal (“ITAT”). Clause 4 of the said Bill provides that “The Chairman and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office and shall be eligible for reappointment for another term”.

It has not been appreciated by the persons/ parties who have introduced the said Bill that appointing Members of the ITAT for a limited period of 5 years and thereafter requiring them to seek reappointment (at the discretion of the Central Government, the appointing authority) has several disadvantages such as:

(i) It will discourage young professionals from joining the ITAT because of the insecurity of their reappointment as Members after the expiry of 5 years. If the professional is not reappointed as a Member after the expiry of 5 years, he will be unable to go back to practice in view of the Notification prohibiting ex-Members from practice. Even if the Member is eligible to resume his practice, it would be impractical for him to do so, given the lapse of time;

(ii) It will hamper the independence of the Members and their ability to take decisions in favour of the taxpayers. The Members will always fear that their reappointment is at risk if they do take bold decisions in favour of the assessee and against the Government (which is the re-appointing authority). This will destroy the fierce independence for which the ITAT is presently famous and for which it is held in great esteem by the taxpayers.

If the concern of the draftsmen of the Bill is that appointing ITAT Members till superannuation means that corrupt and/ or incompetent Members cannot be removed, that concern is unfounded. Under the “doctrine of pleasure” recognized under Article 310, all civil posts under the Government are held at the pleasure of the Government and are terminable at its will. In Ajit Kumar vs. State of Jharkhand (2011) 11 SCC 458 the Supreme Court held that the disciplinary authority could even dispense with an enquiry if it was of the view that an enquiry was not practicable to be held (e.g. in the case of a Judge who is alleged to have ‘outsourced’ judgements). This principle was applied recently in Mahesh Kamat vs. Kadamba Transport (pdf) where the High Court upheld an order of “compulsory retirement” on the ground that it was in public interest (see news item).

Protest from professionals & stakeholders is required:

It is imperative that the proposed move to appoint ITAT Members for a period of 5 years be opposed vociferously by taxpayers, professionals and all others having a stake in the independence of the ITAT. The Bar Resolution has already passed a resolution condemning the proposal. If you are also opposed to the proposal, please use the comment box to say so.

For more see the article by Dr. K. Shivaram, Senior Advocate

13 comments on “Bill To Appoint ITAT Members For 5 Years Will Destroy Independence Of ITAT
  1. Chaitanya Maheshwari says:

    This amendment will really affect the independence of the Tribunal Member, and he will be working at the mercy of the Government. So, this Bill must not be passed.

  2. Nishant says:

    The grounds taken have no substance. In other Tribunals a Member is appointed for a period of 5 years & is eligible for reappointment for another term of 5years. It is seen persons of good experience and knowledge apply and are appointed on above conditions. Considering the way of working in last 10years or so ,it is desirable and necessary to appoint an HIGH COURT judge as PRESIDENT OF THE TRIBUNAL ITAT. It will be a check on some of the Bars in the country.If this Bill is passed, it will be a good step towards reforms which over due

  3. Pramod Agarwal says:

    We also agree with the resolution passed by the Bar.
    From- Pramod Kumar Agarwal, Advocate

  4. varanasi siva kumar says:

    Dear Sir,

    I support the article wholeheartedly. The idea of fixed term appointments (particularly with a clause which dangles a carrot at the end of the term) for judicial posts is not a progressive step.

    I am of the sincere view that the extension clause is the core of the intent behind the bill. I am sure even the intellectuals who introduced the bill will not support the bill if the extension clause is removed.

    v. sivakumar

  5. Kumar Manwani says:

    dear members,

    r v living in the deserts of AFRICA?? why do we have to give a bond of 5 years for members of ITAT w.r.t. their appointment??

    do we want non performing, disturbed minds or corrupt minds to decide on apathy of taxpayers just because their job is at stake?? where is there INDEPENDENCE??

    please stop this CRAZY practice of taking nation’s unbiased decisions by giving carrot of “5 YEARS” to members of ITAT.

  6. Adv K R Singh says:

    Fixing the tenure of ITAT members including president for five years is many folds detrimental to the judiciary. A very capable person will not be interested in joining for a short period and will find it inconvenient to discharge his judicial function freely. Letting go off a person of such experience will be ITAT’s loss as it will squander the opportunity of utilizing their expertise. The expertise must be hold for better delivery of judgment. Don’t worry, demons has gone.

  7. gopal nathani says:

    What is of importance is the selection/re-appointment procedure and not the tenure. It used to be fixed 5 year tenure for ITAT originally and then later till superannuation.

  8. Krishnagiri Dhandapani says:

    The modification restricting the term to five years and thereafter extending it is found to be perfectly in order and a welcome measure.

    Firstly there will be a quality upgradation due to constant influx of fresh minds.
    Secondly the persons if appointed through political back ground cannot continue for longer duration.

    The only complaint is that younger professionals may not choose the post.
    Let them not. And when the minimum cap is kept at 50 experienced persons who can assimilate and deliver better will join.

    Overall the standards of this Judicial forum will raise high.

  9. sher.singh says:

    One more stupidity of outgoing government. If this is the state of mind of law ministry, why to have appellate proceedings at all. Let orders of Assessing Officers be final & let the taxes be recovered by employing cops & auctioneers. There is no prize to guess this hare brained minister with zero loss. This stupid bill will create a big window of fund raising in law ministry. Why don’t you declare the proposal to let out the chairs of tribunal members like toll collection agent. Let the highest bidder become the member, hell with justice.

  10. A voice outside the chorus says:

    There could be another side of the story too. Lets see it from that perspective.

    There is some merit in appointment of more mature and seasoned persons in this job- which is what will essentially follow. Much can be said against the practice of appointing youngsters, without experience or even wisdom, and making them learn on the job. That is a dangerous and risky process but traditionally all key stations have more than fair share of youngsters carrying on all sort of experiments.

    ITAT, or for that purpose any judicial body, should not be seen as a maturity cask. These forums are perhaps more appropriate for mature and accomplished people as last port of call of an otherwise successful career, rather than starting point of a belated journey. This paradigm shift is probably overdue.

  11. It is very unfortunate that the govt is in the process of taking a such a retrograde step by limiting the appointment of ITAT members for five years only. Instead of solving the existing issues faced by ITAT, the govt is trying to add one more issue and thus enlarging the list.

    I hereby oppose and condemn such a move of the govt. We all shall make all efforts and pursuade the govt to drop the clause restricting the appointment of Tribunal members for five years. The appointment of tribunal members should be permanent.


    It is necessary to keep independence and future of the young Members to make these posts permanently. There may be more strict rules regarding removal of corrupt Members. At the time of appointment of the members there confidential report should also be obtained from BAR, Department , Society where he/she practicing.

  13. Ashwani Joshi says:

    The proposed amendment is unwanted and is in bad taste. Five years is much less a period for any newly appointed member of a tribunal to be mature enough to deliver the quality judgements. Since the tribunal is a final fact finding authority, judgements delivered by ITAT on the point of law get tested in superior courts after about five to ten years because of long cause list. Legal professionals and judges need vast experience. To weed out the corrupt judicial authorities, there can be other checks. The law may be amended to hold marked ones accountable or dismissed from service. But in no case those should be left to the mercy of bureaucracts. This may prove to be another seed for fresh species of corruption tree.

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