Can retired ITAT Members practise in ITAT – Special Bench to hear

By Vijay Kumar

By Notification No. GSR 389E dated 03.06.2009, the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963, were amended to stipulate that

The President, the Senior Vice-President, the Vice-President and the Members of the Tribunal shall not practice before the Tribunal after retirement from the service of the Tribunal.

Now this issue is before a Special Bench of the ITAT with the following questions:-

1. Whether, the said Notification applies to the Members who have retired prior to the date of publication of the Notification?

2. Whether, the said Notification applies only to the Members who retired from the Tribunal on and from the date of publication of this Notification?

3. Whether, the said Notification applies to those Members who are recruited before but retire after the date of Notification?

4. Whether, the said Notification applies to the Members who retire, if otherwise are qualified to practice u/s. 288 of the Income-Tax Act, should still be debarred to appear and argue before the Tribunal?

5. Whether, the said Notification applies to the Members who resigned from service before the date of Notification, without any retirement benefit?

The Special Bench is to hear the case on 03.08.2009.

In DDT 1137 - 22.06.2009, we had mentioned,

While the CESTAT President, VP and Members cannot practice before CESTAT after ceasing to hold office in the CESTAT, ITAT President, VP and Members cannot practice before ITAT only after retirement. So, if a Member, VP or even President of ITAT resigns from his/her post, there is no bar for them to practice before ITAT because the relevant rule only says that they shall not practice before the Tribunal after retirement. Whereas for the Members, VPs and President of CESTAT, even if they resign from their posts, they are not entitled to practice because the relevant provision says 'on ceasing to hold office'.

Now is the ITAT competent to decide all these issues, especially after the Delhi High Court had in P. C. Jain vs. UOI - 2009-TIOL-185-HC-DEL-CESTAT decided all these issues in respect of former CESTAT Members?