Bar vs Bench
"ALL of us, i.e. judicial officers, departmental representatives and assessee's representatives, are like a large joint family, in pursuit of a common goal of the cause of justice, and all of us have an equal stake in well-being of this institution, and, therefore, whatever be the provocation, all of us should desist from invoking these extreme measures and in washing dirty linen in full public gaze." - Pramod Kumar, Member (A) of ITAT in 2013-TIOL-570-ITAT-LKW.
Generally, our Courts and Tribunals are exemplary models of good behaviour, though sometimes to the extent of ridiculous courtesy. "We are much obliged" when the Bench most unreasonably asks us to make a huge pre-deposit of not only duty outrageously demanded by the Commissioner, but also interest on the duty (not) payable and penalty, so illegally imposed. All the judges are honourable and "my lords"; all the lawyers are learned - so are all the Commissioners who pass those patently illegal orders. All our arguments are "humble submissions" and what we ask the bench is not a demand of what is ours by right, but a "humble prayer". And we are all in black robes, perhaps symbolising the inherent tragedy couched in all these artificial courtesies.
Even in such a sea of tranquillity (which as you know does not exist on Earth), sometimes fissures are bound to develop.
In recent times, this has been quite visible in the Income Tax Appellate Tribunal. Some Bar Associations have boycotted some Members and sent complaints against Members to the President. The ITAT has no regular President for the last more than three years and many in Income Tax Circles feel that all the troubles are because there is no President, but in some other Tribunals, they feel that all the troubles are because of the president and they recall the happier times when there was no President.
In the particular case, which we bring you today, the ITAT made a reference to the President of the Institute of Chartered Accountants with a request to take necessary action as per law against a CA for his professional misconduct and also to take corrective measures and necessary steps to educate its members to behave with the judicial authorities befitting to their status and should not be engaged in scandalizing the judicial authority/courts. The Tribunal also imposed a cost of Rs.5000 on the CA. Earlier the ITAT had filed a contempt petition against the CA in the Allahabad High Court.
Some Bar Members had earlier complained against the ITAT Member.
Against the ITAT Order, the CA filed a writ in the Allahabad High Court and the High Court observed that it appears that originally, the dispute was between Accountant and Judicial Members of the Tribunal.
The High Court held, "During the course of arguments, the petitioner has tendered his unconditional apology orally as well as in writing. When the petitioner has tendered his unconditional apology, no further adjudication is required."
So, the High Court expunged the reference made by the Tribunal to the Institute of Chartered Accountant of India, and cancelled the cost of Rs.5,000/-, imposed by the Tribunal too. Adverse remark against the petitioner, if any, is also expunged.
The High Court added, "We hope that in future such type of incident will not be repeated. It is in the interest of justice to maintain the dignity and decorum of the judicial system and the Tribunal is an essential part of it."
Proxy war between Members of the Tribunal: While the High Court made a mention of the dispute between two Members of the Tribunal, the ITAT Member Pramod Kumar in the case cited in the top para also made some caustic remarks about this situation. "In any case, the way these resolutions and communications have been issued- attacking one of the Members and defending the other Member by one interest group, and with a role reversal by the other interest group, this looks like a proxy war being fought by the Members through these people- something which could never have been intended by my distinguished colleagues. Unsolicited overenthusiasm by their respective support groups makes it an ugly sight and may be seen as a sad commentary on the functioning of division benches."
Advocacy - Decay: Mr.Pramod Kumar also observed, "The profession of law and accountancy, which had earned so much of well deserved respect and dignity for their outstanding contribution to the larger interests and good causes, cannot always be said to be absolutely beyond general decay in society. There are bar associations which have fought legal battles to protect independence of our institution and, in the process, have helped us earn, as indeed everyone associated with this Tribunal, the respect and credibility. Many of the learned representatives appearing before us, which included, for long decades, legendry and great lawyers like late Shri N A Palkhivala, have helped us do our job in a more meaningful and satisfying manner, and have helped this institution emerge as an institution of distinction and eminence."
Restraint is not timidity: The Member tersely concluded, occasions do arise when politeness is taken as weakness and restraint is taken as timidity, making it impossible for a righteous person or institution to survive with dignity, self-respect and with a healthy distance from the troubles and trouble creators.
Click here for the High Court order.