What are ‘speaking orders'?
Long ago in a social gathering of Central Excise officers, I conducted a survey as to what speaking orders were. These are some of the answers I received
1. They are other than adjudication orders
2. They are given when there is no offence case
3. They are orders relating to refunds.
4. They are orders when no SCN is issued
5. They are issued when demanded by the party
And they are orders that speak for themselves.
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 forums. 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 dismissed as the court agrees with the lower court.
Speaking orders are necessary if judicial review is to be effective. One basis of this requirement is to exclude or minimise arbitrariness.
Justice Mathew said, “The judicial method cannot be disinterested. To call it to be ‘reasoned' means little for ‘reason' is a tool not an end. The results of a process of reasoning depend entirely upon what premises are used in that process. Although reason is not the life of law, it surely is a part of law”.
So when I say that a particular rule is applicable, I should also say why it is applicable.
If reason is absent, the appellant forum is in the dark.
Speaking orders are orders, which tell their own story.
Speaking Orders as a concept was not given much importance in India , in the early years of our independence, when the officialdom was not often questioned. (Perhaps then their actions were not much questionable also) It was justice Bhagavathi , in Express Newspapers v UOI , who first expressed the need for Speaking Orders. In Siemens Engg & manufacturing Company V UOI 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, “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. And perhaps that is how the CEGAT ( CESTAT ) was born.
The Law Commission in its Fourteenth report ( Vol.II , P.694 , ch.31 ) suggested, “in the case of administrative decisions, provision should be made that they should be accompanied by reasons.”
In USA , The Administrative Procedure Act, Section 8 stipulates a speaking order. It reads, “All decisions (including initial, recommended and tentative decisions) shall include a statement of findings and conclusions and the reasons or basis thereof, on all material issues of fact, law or discretion presented on the record ”.
Well, perhaps nobody could have expressed it better than the American Law. Incidentally the US law distinguishes between adjudication and order. “Order means the whole or any part of the final disposition (whether affirmative or declaratory in form) in any matter other than rule making but including licensing. Adjudication means the process for the formulation of an order.
Though there is no specific law in India on this, including in Central Excise and Customs, the courts have made speaking orders mandatory. In Customs and Excise, we have provisions for issue of Show Cause Notices, but the law specifically does not require the adjudicating or appellate authorities to give speaking orders. But whether it is provided in the Acts or not, an adjudication order has to be a speaking order even if it relates to a simple thing like waiver of pre- deposit. The Supreme Court has now made the position absolutely clear even for High Courts.
CBDT Extends Due Date For Tds Quarterly Returns
The CBDT has extended the due date for filing of quarterly statements of Tax Deducted at Source ( TDS ) and Tax Collected at Source ( TCS ) for the quarter ending 30th September 2007 of financial year 2007-08 to 29th February 2008. This is in view of the difficulties being faced by the tax deductors / collectors in filing statements with the correct PAN data mandatorily required to be furnished to the extent of at least 90% in the cases of salaried deductees and 70% in the cases of other deductees .
For and from the quarter ending 30.9.2007, in addition to government offices and companies, filing of TDS / TCS returns in electronic form has been made mandatory for
(i) deductors / collectors required to get their accounts audited under section 44AB of the Income-tax Act in the immediately preceding financial year, and
(ii) where the number of deductees ' / collectees ' records in a quarterly statement for any quarter of the immediately preceding financial year is equal to or more than fifty.
CBDT Press release No.402 /92/2006-MC (07 of 2008) dated the 4th February 2008.