TIOL-DDT 11 · the untouched capture
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<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#0000CC" size="3">TIOL-DDT
11</font><br>
16 12 2004<br>
Thursday</b></font></p>
<p align="center"><font color="#006633" size="2" face="Verdana, Arial, Helvetica, sans-serif">
<b>SPEAKING ORDERS - SPEAK LOUD ENOUGH?</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The
main principles of natural justice are</font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ No man shall be a judge in his own case<br>
<br>
++ Hear the other side<br>
<br>
++ The party must be made known the reasons for the decision.</font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It is for this requirement of the party being told the reasons for the decision,
that speaking orders are required to be passed by adjudicating authorities.<br>
<br>
In simple terms a speaking order is an order that speaks for itself. The order
should stand the test of legality, fairness and reason at all the higher appellate
fora. That is, the order should contain all the details of the issue, clear
findings and a reasoned order. Such an order that speaks for itself is called
a speaking order. Even the courts are required to give speaking orders except
perhaps when the appeal is quashed as the court agrees with the lower court. <br>
<br>
Quasi-judicial authorities are bound to give speaking orders. Now the courts
have no hesitation in striking down an order, if it is not a speaking order.
In the criminal courts, evidence plays a major role whereas, in fiscal civil
cases, an interpretation of law often plays a dominant role. Further, the higher
courts have only the opinion of the lower adjudicating authority to go by.<br>
<br>
The Administrative authorities having a duty to act judicially can not decide
on consideration of policy or expediency and so a speaking order will bring
out the factors that weighed in favour or against a particular decision. One
of the principles of natural justice is that a party ought to know the result
of the enquiry and the reasons for the decision.<br>
<br>
Speaking orders are necessary if judicial review is to be effective. One basis
of this requirement is to exclude or minimise arbitrariness.<br>
<br>
<b>If reason is absent, the appellant forum is in the dark.<br>
<br>
Speaking orders are orders, which tell their own story.</b><br>
<br>
In the words of Chief Justice Koka Subba Rao, in MP Industries v UOI (AIR 1966
SC 671) "The compulsion of disclosure guarantees consideration. The condition
to give reasons introduces clarity and excludes or at any rate minimises arbitrariness.
It gives satisfaction to the party against whom the order is made.
Even in the case of appellate courts, invariably reasons are given, except when
they agree with the reasoned judgement of the subordinate court".<br>
<br>
Speaking Orders as a concept was not given much importance in India, <b>in the
early years of our independence, when the officialdom was not often questioned.
(Perhaps then their actions were not much questionable also as they are now).</b> It was justice NH Bhagavathi, in Express Newspapers v UOI (AIR 1958 SC 578)
who first expressed the need for Speaking Orders. In Siemens Engg & manufacturing
Company V UOI, ( 1976, SC 1785) the Supreme Court held that "where an
authority in exercise of a quasi judicial function, makes an order, it must
record its reasons". In the same case the court observed,<br>
<br>
"In fact it would be desirable that in cases arising under Customs and
Excise laws, an independent quasi judicial tribunal.. is set up which would
finally dispose of appeals and Revision applications under these laws, instead
of leaving those appeals to the Government of India. An independent quasi-judicial
tribunal would definitely inspire greater confidence in the public mind".<br>
<br>
And perhaps that is how the CEGAT/CESTAT was born.<br>
<br>
Today we report for you a Madras High Court order which remands a case to the
Commissioner of Income Tax after 16 years as the original order passed by the
Commissioner <b>was not a speaking order.</b> Please see </font><font size="1" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=51&filename=legal/hc/2004/2004-TIOL-38-HC-MAD-IT.htm">2004-TIOL-38-HC-MAD-IT</a></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">.<br>
<br>
<b>It's time the CBEC and CBDT, train their adjudicating officers on how
to write speaking orders. </b><br>
<br>
<font color="#FF0000"><b>Truth is stranger than fiction!</b></font><br>
<br>
While on speaking orders, today we bring you a real story on a farce in an appellate
office. Nothing in the story is imagination. Every word is true - only
names have been changed to protect the guilty. Tax humour? No! Tax reality.
Please see <b>'Tax Humour' in 'News Channel'.</b><br>
<br>
<font color="#FF0000"><b>Speaking orders! They should speak louder. </b></font>
<br>
<br>
Until Tomorrow with more of DDT<br>
<br>
Have a Nice Day</font></p>
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