{"id":14634,"date":"2020-02-27T16:58:29","date_gmt":"2020-02-27T11:28:29","guid":{"rendered":"http:\/\/itatonline.org\/info\/?p=14634"},"modified":"2020-02-27T16:58:29","modified_gmt":"2020-02-27T11:28:29","slug":"tax-professionals-strongly-oppose-the-new-rules-for-appointment-of-members-of-the-itat","status":"publish","type":"post","link":"https:\/\/itatonline.org\/info\/tax-professionals-strongly-oppose-the-new-rules-for-appointment-of-members-of-the-itat\/","title":{"rendered":"Tax Professionals Strongly Oppose The New Rules For Appointment Of Members Of The ITAT"},"content":{"rendered":"

Leading legal experts like Justice R. V. Easwar<\/strong> (Retd), Shri Arvind Datar<\/strong> and others have expressed strong reservations with regard to the new rules formulated by the Government for the appointment of Members of various Tribunals, including the ITAT. The experts have opined that the rules violate the law laid down by the Supreme Court with regard to maintaining the integrity and independence of the ITAT. They has also pointed that the short tenure of appointment will discourage good professionals from joining the ITAT. <\/p>\n

According to experts, the New Rules 2020, will benefit only the retired personals who are in government service and it will affect the smooth & independent functioning of the appellate Tribunal. Functioning of the Income Tax Appellate Tribunal cannot be compared with that of the Electricity Tribunal or the Environmental Tribunal. Some of the issues which affect the independency of the functioning of the ITAT are:<\/p>\n

(1) The term of office for four years as prescribed by the Schedule to the said Rules and the Qualifications for appointment of Judicial and Accountant Members are in violation of the principle laid down by the Hon’ble Supreme Court in Rojer Mathew and Union of India v. R. Gandhi (2010) 11 SCC 1<\/em><\/strong> and against the doctrine of separation of powers in as much as it does not prescribe any concrete guidelines for re-appointment of the Members of the Tribunal upon the expiry of their short tenure and that this may inadvertently compromise the functioning and independence of the said Tribunal, as the Central Government is a party to every litigation before the said Tribunal. The enhancement of the period of practice for CAs and Advocates shall discourage well settled professionals from joining the Bench, and this criterion is higher than the minimum prerequisite for an Advocate to be appointed as a High Court Judge. This could have the effect of retired bureaucrats and other eligible functionaries close to retirement from public service to look at the Tribunal as a means to extend their careers considering the enhanced age of retirement as per the new rules.<\/p>\n

(2) There is no legal or logical reason or justification in the term of office of four years as prescribed by the Schedule to the impugned Rules or the maximum limit of five years as prescribed by Section 184 of the Finance Act, 2017, and the said limits to the tenure and unconstitutional and disregard the dicta of the Supreme Court in Rojer Mathew (supra)<\/em><\/strong>.<\/em><\/p>\n

(3) Though the said Tribunal carries out Judicial functions, the Judiciary is inadequately represented in the ‘search cum selection committee’ for the appointment and reappointment of Members which leads to a primacy of control of selection and reappointment in the Executive in violation of the guidelines framed by the Constitutional Bench of the Hon’ble Supreme Court in Rojer Mathews (supra)<\/em> and the presence of the Secretary, Ministry of Finance (Department of Revenue) on the search-cum-selection committee that is a party to every appeal before the Tribunal is a clear conflict of interest and against the principles of independence of Judiciary.<\/p>\n

(4) That the Rules cannot override the ratio and dicta laid down by the Supreme Court as they are not specifically formulated by an act of the Parliament and are liable to be struck down.<\/p>\n

(5) That the said Rules are violative of the fundamental concept of separation of powers in as much they provide for the Central Government to be the leave sanctioning authority for the President of the Income-tax Appellate Tribunal and also for the other Members of the said Tribunal in the absence of the President.<\/p>\n

(6) The changes brought about by the impugned Rules cannot be made applicable to those candidates that have applied to be appointed as Members of the Income-tax Appellate Tribunal, given the interview for the same and fulfilled all other formalities but have not yet been notified as Members of the said Tribunal. Similarly, the new rules can be seen as an inducement for the existing members who may be eligible for reappointment to the tribunal after retirement under current rules as the retirement age is revised to 65 and no upper limit of age is prescribed for appointment to the Tribunal.<\/p>\n

See also: New Rules For Appointment Of Tribunal Members Encroaches Upon Judicial Independence And Also Is Non-Compliant With The Guidelines Issued By The Supreme Court<\/a> <\/div>\n
Click here to download the new Rules<\/a> <\/div>\n

Experts view<\/u><\/strong><\/p>\n

A prima Facie reading shows that these rules contain the same vice which the earlier rules of 2017 contained which were struck down by the Supreme Court. In fact, these rules appear worse to me and in my opinion meet the same fate. <\/p>\n

– Hon’ble Justice Mr. R. V. Easwar (Retd.) Senior Advocate Delhi <\/strong><\/p>\n

It is unfortunate that the Central Government has again openly flouted the mandatory directions of the Supreme Court which were laid down in 2010 and a review against the same was also dismissed. In para 120 of the order of the Madras Bar Association, which was given in 2010, clear guidelines have been set out as to the composition of the selection committee, the term of office of the particular member, and so on. This guideline was once again sought to be disobeyed by an act of parliament, when the new Company Law Tribunal was formed, that was struck down. When a Parliamentary law itself is struck down for not complying with Supreme Court directions, it is quite shocking that the Central Government keeps on framing the same guidelines in complete disobedience and defiance of the Supreme Court’s order. We will have no option but to once again challenge this guideline before, either the Supreme Court or the respective High Court. My sincere wish is that, all associations throughout the country should take it up as a National issue and challenge these provisions which completely in brazen opposition to the Supreme Court’s decisions. We should make sure that the Tribunals are as independent as the Judiciary.<\/p>\n