ITAT - Practice by Former Members - Retired Members can practice before Benches where they have not worked - Till next hearing
THE passion of retired Members of the Tribunals (ITAT, CESTAT) to practice before the Tribunals is simply unbridled.
A few years ago, a retired Member of the CESTAT appeared before the CESTAT as a Counsel, a day after his retirement as Member. The then President of CESTAT told DDT that it was unethical – obviously he must have got the client while he was still a Member of the Bench. The President got the Government to amend Section 129 of the Customs Act, 1962 to insert a new sub-section (6) which stipulated that the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal on ceasing to hold office.
In P. C. Jain vs. UOI - 2009-TIOL-185-HC-DEL-CESTAT, the Petitioners (retired Members of CESTAT) contended that the provision in Section 129 (6) of the Customs Act, 1962 is ultra vires Articles 14, 19 (1)(g) and 21 of the Constitution in as much as the said provision is discriminatory and effects their right to livelihood. The petitioners also contended that members of other Tribunals like Income Tax Appellate Tribunal and Appellate Tribunal for Foreign Exchange are not disabled from practising before the respective Tribunals. These contentions were set aside and the High Court ruled that the provision barring retired Members of CESTAT from practising before the CESTAT is neither unconstitutional nor discriminatory.
By GSR 889 (E) NOTIFICATION Dated: June 3, 2009, the Government amended the ITAT (Recruitment and Conditions of Service) Rules, 1963 to bar retired Members, Vice President and President of ITAT from practising before ITAT.
This issue was a matter before a Special Bench of the ITAT in M/s CONCEPT CREATIONS vs. ADDL CIT 2009-TIOL-571-ITAT-DEL-SB, the Special Bench held that the amendment does not apply to Members who have retired prior to the date of publication of notification.
The same issue recently reached the Allahabad High Court and the High Court stayed operation of rule 13E as well as the judgment in the case of Concept Creations in so far as they impose a complete ban on the practice by retired members before the Tribunal.
The Court held that it would be open for the retired members to practice before the Benches of Tribunal where they had not remained posted and held courts temporarily or on regular basis – till the next hearing.
We are told that even after the Delhi High Court judgment in P C Jain case, a retired CESTAT Member had appeared before the CESTAT as a consultant.
DDT 1137–22.06.2009, questioned, “Do the retired Members of Tribunals need to be told by the Court or declared by the Statute that they are not eligible to practice before the respective Tribunals? When a High Court judge retires from his/her position, if they intend to practice post retirement, they do not practice before any High Court or lower Courts but appear only before the Supreme Court. This not only enhances their stature but also protects the dignity of the Judiciary and the individual alike. Likewise, the retired Members of ITAT or CESTAT or for that matter any Tribunal should have voluntarily refrained from practising before the respective Tribunals or any forum lower to the Tribunals and practice before High Courts or Supreme Court.”
Please see
Please also see:
++ TIOL story on April 17, 2009: Former Members cannot practise in CESTAT - No unregulated right of practice - There was a time when a son would appear in court presided over by his father and no questions were asked - Former members' writ petition dismissed: Delhi High Court 2.
++ ‘No Practice for Retired ITAT Members' - TIOL-DDT 1137 22.06.2009
++ Can retired ITAT Members practise in the ITAT – Special Bench to hear. - TIOL-DDT 1159 22.07.2009
++ TIOL story on September 17, 2009: ITAT Members who retired prior to 3.6.2009 and Members who resigned before being confirmed can practice in Tribunal - ITAT envious of CESTAT: ITAT Special Bench
++ – 23.09.2009
++ ARE RETIRED MEMBERS OF ITAT ELIGIBLE TO PRACTICE BEFORE ITAT? MATTER ONCE AGAIN BEFORE ITAT SPECIAL BENCH - TIOL DDT 1640 – 29.06.2011