Should Tribunal be Impleaded as a Respondent?
WHEN you file an appeal or writ petition in a High Court against an order of the CESTAT or ITAT, should the CESTAT or ITAT be shown as a respondent? Once I almost lost an appeal on this ground when a High Court told me that my appeal was bound to be dismissed as I had not shown CESTAT as a respondent in a case challenging an order of the CESTAT. I submitted that the other party in my appeal is the Union of India/Commissioner who should defend the orders of the Tribunal. The Tribunal is not expected to defend its order before the High Court. I submitted that when I appeal to the Supreme Court against an order of the High Court, I don't make the High Court a respondent. The Court was convinced and my appeal was allowed. Not everyone is so lucky.
There was a case decided by the Supreme Court on Monday in which the High Court had dismissed an appeal because the Tribunal was not impleaded as a party. The Supreme Court observed,
The tribunal is not required to defend its orders when they are challenged before the High Court in a Special Civil Application under Articles 226 and 227. It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. When the remedy is invoked, the tribunal is not required to step into arena of conflict for defending its order. Hence, the tribunal is not a necessary party to the proceedings in a Special Civil Application.
In several appeals before the High Courts, you will find the Tribunal impleaded as a respondent as in:
CCE, Chandigarh Vs CESTAT - 2007-TIOL-23-HC-P&H-CESTAT
CCE, PONDICHERRY Vs CESTAT -
UoI Vs CESTAT - 2005-TIOL-51-HC-KOL-CESTAT
CIT Vs INCOME TAX APPELLATE TRIBUNAL -
CIT Vs INCOME TAX APPELLATE TRIBUNAL -
PR CIT Vs INCOME TAX APPELLATE TRIBUNAL-
Can the Tribunal be an appellant/petitioner in a case? It so happened that the ITAT filed an appeal against an order of the High Court. We reported the case in 2002-TIOL-99-SC-IT.
You can see the latest judgement of the Supreme Court in 2016-TIOL-125-SC-MISC-LB.