K. V. Hari Babu, ACMA, CS
Central Sales Tax Act – Assessment orders under Sections 6A(1), 6A(2) and 6A(3) – Appellate Forum to be approached
There is confusion in the minds of dealers/assessees as to the appellate forum to be approached in case of assessment orders passed under Sections 6A(1), 6A(2) and 6A(3) of the Central Sales Tax Act, 1956 (hereinafter referred to as "CST"). I wish to discuss on the subject in this article, with an intention to clarify the doubts in the minds of the dealers/assessees.
1.1. CST Act deals with taxation of inter-state sales made by the dealers. A sale which occasions movement of goods from one State to another or is effected by transfer of documents of tile to the goods during the movement from one State to another falls within the ambit of inter-state sale and liable for tax under the CST Act.
1.2. If the movement of the goods does not takes place as a result of sale, but effected by a dealer to his own place of business or to his agent or principal in another State, then there is no tax liability on the dealer, since there is no sale of goods, subject to establishment of movement of goods otherwise than as a result of sale. CST Act stipulates the conditions to be fulfilled by the dealer, to prove that the material movement has taken place not as a result of sale, but on account of stock transfer to his place of business or to his agent or principal in another State(s).
2. Conditions for granting exemption to stock transfers:
2.1. The dealer effecting stock transfer of goods from one State to his place of business or to his agent or principal in another State, shall obtain a declaration in Form 'F' signed by the authorised signatory in other State(s), issued by the VAT department in those State(s), indicating the details of stock transfers made on the declaration Form, such as stock transfer challan no., date, value of the materials, vehicle no., LR No., date etc. The dealer is also required provide proof evidencing dispatch of goods to his place of business or to his agent or principal in other State(s). If the dealer fails to furnish the Form 'F' declarations and prove movement of goods to another State other than by way of sale, then the stock transfers shall be treated as sales.
2.2. Rule 6A of the CST Act is reproduced hereunder for ready reference:
"6A. (1) Where any dealer claims that he is not liable to pay tax under this Act, in respect of any goods, on the ground that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business or to his agent or principal, as the case may be, and not by reason of sale, the burden of proving that the movement of those goods was so occasioned shall be on that dealer and for this purpose he may furnish to the assessing authority, within the prescribed time or within such further time as that authority may, for sufficient cause, permit, a declaration, duly filled and signed by the principal officer of the other place of business, or his agent or principal, as the case may be, containing the prescribed particulars in the prescribed form obtained from the prescribed authority, along with the evidence of despatch of such goods and if the dealer fails to furnish such declaration, then the movement of such goods shall be deemed for all purposes of this Act to have been occasioned as a result of sale".
2.3. Rule 12(5) of the Central Sales Tax (Registration and Turnover) Rules, 1957 (hereinafter referred to as "CST Rules") stipulates that the declaration referred to in sub-section (1) of Section 6A shall be in Form 'F'.
2.4. A single declaration form shall cover the stock transfers effected by the dealer during one calendar month.
2.5. In effect, a dealer, who effected stock transfer of goods to his place of business or agent or principal in another State shall obtain one Form 'F' for each of the months during the year. If there are stock transfers during all the twelve months in a year, the dealer is required to obtain twelve (12) 'F' Forms from his place of business or agent or principal in another State and submit to his assessing authority along with proof of dispatch of goods to get exemption.
2.6. The dealer has to submit forms obtained from his branch or agent or principal outside the State, within three months from the end of the month in which stock transfers took place.
2.7. In case the dealer fails to submit the 'F' Forms, the movement of goods shall be treated as a result of sale and CST shall be levied, as per Section 6A(1) of the CST Act.
3. Assessment of stock transfers:
3.1. The assessing authority is required to verify the Form 'F' declarations furnished by the dealer and proof of dispatch of goods other than by way of sale and if he is satisfied that the movement of the goods from one State to another State is not as a result of sale, he may pass assessment order, admitting the stock transfers and grant exemption from taxable turnover, since the movement of the goods has been occasioned otherwise than as a result of sale. Rule 6A(2) of the CST Act dealing with assessment is reproduced hereunder for ready reference:
"(2) If the assessing authority is satisfied that after making such inquiry as he may deem necessary that the particulars contained in the declaration furnished by a dealer under sub-section (1) are true, he may, at the time of, or at any time before, the assessment of the tax payable by the dealer under this Act, make an order to that effect and thereupon the movement of goods to which the declaration relates shall, subject to provisions of sub-section (3), be deemed for the purpose of this Act to have been occasioned otherwise than as a result of sale".
3.2. The rule stipulates that the assessing authority required to pass assessment order, treating the movement of goods otherwise than as a result of sale and exempt the transaction from CST, in case the assessing authority is satisfied that declarations and documentary evidence furnished by the dealer, in support of claim that goods are moved from one State to another State otherwise than as a result of sale, are true.
3.3. If the assessing authority after verification of the declaration forms and documentary evidence submitted by the dealer, in support of claim for stock transfers otherwise than as a result of sale, the assessing authority shall pass an order, rejecting the claim for stock transfers. In such a case, the movement of goods shall be treated as a result of sales and CST shall be levied on such transfers from one State to another.
4. Difference between orders under Section 6A(1) and 6A(2):
4.1. Order under Section 6A(1): The assessing authorities are required to pass orders under Section 6A(1) of the CST Act, in case the dealer failed to submit Form 'F' declarations. In this case, the claim for stock transfers is rejected for non-submission of 'F' Forms. Genuineness of the movement of goods otherwise than by way of sale is not decided in the orders passed under this Section. The order is purely on account of non-submission of 'F' Forms. Since 'F' Forms are not submitted, the claim from stock transfers otherwise by way of sale is rejected and tax is levied.
4.2. Order under Section 6A(2): Order under this Section is passed after verification of the 'F' Forms and documents in support of claim for inter-state movement of goods otherwise than by way of sale submitted by the dealer. The assessing authority may reject the claim of the dealer for exemption on stock transfers and levy CST on the such inter-state transfers treating the same as inter-state sales, if he is not satisfied about the movement of goods otherwise than by way of sale.
4.3. The basic difference between order under Section 6A(1) and 6A(2) is that in case of order under Section 6A(1) the demand is due to non-submission of 'F' Forms, while in case of order under Section 6A(2) the demand is due to levy of CST treating the movement of goods as a result of sale, rejecting the claim of the dealers that movement is otherwise than as a result of sale.
5. Appellate forum to be approached in case of orders under Section 6A(1) and 6A(2):
5.1. Orders passed for non-submission of 'F' Forms – Section 6A(1):
In case the order is passed under Section 6A(1) of the CST Act, rejecting the dealer's claim for stock transfers, for non-submission of the 'F' Forms, then the appeal lies before the next higher forum in the hierarchy of appellate forums. For ex., if the assessment order is passed by the Commercial/Sales Tax Officer/Asst. Commissioner, the appeal lies before the 1st appellate authority, who is generally Dy. Commissioner/Jt. Commissioner/Addl. Commissioner (Appeals) depending upon the designation of the 1st appellate authority. If the 1st appellate authority rejects the appeal, then the dealer has to file 2nd appeal before the 2nd appellate authority which is called Sales Tax Appellate Tribunal/Board or Tax Board etc., which is the highest appellate authority in the State.
5.2. The important point to be noted here is that once the assessment order is passed for non-submission of 'F' Forms, denying the claim for stock transfers, the appeal lies before the 1st appellate authority, whether the assessing authority clearly indicates that the order is passed under Section 6A(1) or not.
5.3. It is understood there is confusion or mis-conception as to the appellate authority to be approached in case of order under Section 6A(1) or order passed for non-submission of 'F' Forms. It is understood that VAT/Sales Tax authorities in some of the States have also advised the dealers that appeal lies before the highest appellate forum in the State i.e., Sales Tax Appellate Tribunal/Board, in case of orders passed for non-submission of 'F' Forms, citing the provisions of Section 18A of the CST Act.
5.4. Relevant provisions of Section 18A of the CST are reproduced hereunder for ready reference:
"18A. Appeals to highest appellate authority of State
(1) Notwithstanding anything contained in a State Act, any person aggrieved by an order made by the assessing authority under sub-section (2) of section 6A, or an order made under the provisions of sub-section (3) of that section, may, notwithstanding anything contained in the general sales tax law of the appropriate State, prefer an appeal to the highest appellate authority of the State against such order:
Provided that any incidental issues including the rate of tax, computation of assessable turnover and penalty may be raised in such appeal.
Explanation.— For the purposes of this section and sections 20, 21, 22 and 25 highest appellate authority of a State, with its grammatical variations, means any authority or tribunal or court, except the High Court, established or constituted under the general sales tax law of a State, by whatever name called."
5.5. It is very much clear from the provisions of Section 18 of CST Act that appeals to highest appellate authority of the State shall be preferred in case of orders passed under Section 6A(2) and 6A(3) of the CST Act.
5.6. Orders under Section 6A(2) are required to be passed by the assessing authority after verification of the Form 'F' declaration forms and documentary evidence in support of movement of goods otherwise than as a result of sale submitted by the dealer. Therefore, orders Section 6A(2) cannot be passed, if the declaration forms are not submitted by the dealer. In such a case, orders under Section 6A(1) can be passed.
5.7. Section 6A(3) deals with re-assessments by the assessing authority on discovery of new facts or by a higher authority on the ground that the findings of the assessing authority are contrary to the law. Evidently, Section 6A(3) covers re-assessments but not assessments. Therefore, original assessment orders passed by the assessing authorities are not covered by this Section.
5.8. In effect, Section 18A contemplates appeals to the highest appellate forum in the State in two cases:
(i) Original assessment orders passed by the assessing authority, wherein CST is charged on the materials moved from one State to another State, rejecting the claim of the assessee towards stock transfer of materials, after verification of the 'F' form declarations and documentary evidence submitted by the dealer in support of movement of goods.
(ii) Re-assessment orders passed by either the assessing authority or any higher authority.
5.9. The Section does not cover original assessment orders passed by the assessing authority for non-submission of 'F' forms, which are required to be passed under Section 6A(1) of the CST Act.
6. The ambiguity in the matter has been succinctly cleared by the judgment of the Hon 'ble Karnataka High Court in the case of Tropican Beverages Vs. State of Karnataka and Others [(2012) 54 VST 472 (Kar)]. It has been held by the Hon 'ble High Court that where the assessee could not produce Form 'F' to substantiate the exemption, then the question of conducting inquiry under Section 6A(2) does not arise at all. Consequently, the provisions of the Section 18A(1) of the CST Act do not get attracted in this case. Therefore, the appeal lies before the 1st appellate authority, but not before the highest appellate authority i.e., Appellate Tribunal. Dismissal of the appeals by the 1st appellate authority, on the ground that provisions of Section 18A(1) get attracted in this case and therefore appeal lies before the Karnataka Appellate Tribunal, is held to be invalid. The appellate authority is directed to decide the appeals as per the directions given by the High Court.
(i) Dealers are advised to file appeals against the assessment orders passed for non-submission of 'F' forms before the 1st appellate authority, but not before the highest appellate forum in the State.
The assessment order is supposed to mention that the order is passed under Section 6A(1) of the CST Act. Even if the assessment order fails to mention that the order is passed under Section 6A(1) of the CST Act, the dealer is required to prefer appeal before the 1st appellate authority, but not before the highest appellate forum in the State.
(ii) Dealers are advised to file appeals before the highest appellate forum in the State i.e., Sales Tax Appellate Tribunal/Board or Tax Board, in case the order is passed either under Section 6A(2) or 6A(3) of the CST Act.Order under Section 6A(2) relates to rejection of the claim for stock transfers after verifying the genuineness of the transactions. Re-assessment order is passed under Section 6A(3) by the assessing authority on discovery of new facts or by a higher authority on the ground that the findings of the assessing authority are contrary to the law.
No s. 14A disallowance if satisfaction not recorded with reference to A/cs. Under Rule 8D(2)(ii) loans for specific business purposes cannot be included. Under Rule 8D(2)(ii) & (iii) investments which have not yielded income cannot be included
In AY 2008-09, the assessee invested Rs.103 crores in shares on which it earned tax-free dividends of Rs. 1.3 lakhs. The assessee claimed that though its borrowings had increased by Rs. 122 crores, the said investments were funded out of own funds like capital and profits. It claimed that no expenditure had been incurred to earn the dividends and no disallowance u/s 14A could be made. The AO applied Rule 8D and computed the disallowance at Rs. 4 crore. On appeal by the assessee, the CIT(A) reduced the disallowance to Rs. 26 lakh. On cross appeals, HELD by the Tribunal:
(i) When the AO does not accept the assessee's claim regarding the non-applicability/ quantum of disallowance u/s 14A, he has to record satisfaction on that issue. This satisfaction cannot be a plain satisfaction or a simple note. It has is to be done with regard to the accounts of the assessee. On facts, as there is no satisfaction by the AO, no disallowance u/s 14A can be made (Balarampur Chini Mills 140 TTJ (Kol) 73 (included in file) followed);
(ii) Rule 8D(2)(ii) is a computation provision in respect of expenditure incurred by way of interest which is not directly attributable to any particular income or receipt. This clearly means that interest expenditure which is directly relatable to any particular income or receipt is not to be considered under rule 8D(2)(ii). The AO has to show that the interest is not directly attributable to any particular income or receipt. In the assessee's case, the interest has been paid on loans taken from banks for business purpose. There is no allegation that the loan funds have been diverted for making investment in shares or for non-business purposes. The loans are for specific business purposes and no bank would permit the loan given for one purpose to be used for making any investment in shares. Also, the assessee has substantial capital & reserves. Accordingly, the interest on the loans cannot be included in Rule 8D(2)(ii);
(iii) Further, in Rule 8D(2)(ii), the words used in numerator B are "the average value of the investment, income from which does not form or shall not form part of the total income as appearing in the balance-sheet as on the first day and in the last day of the previous year". The AO was wrong in taking taken into consideration the investment of Rs.103 crores made during the year which has not earned any dividend or exempt income. It is only the average of the value of the investment from which the income has been earned which is not falling within the part of the total income that is to be considered. Thus, it is not the total investment at the beginning of the year and at the end of the year, which is to be considered but it is the average of the value of investments which has given rise to the income which does not form part of the total income which is to be considered. The term "average of the value of investment" is used to take care of cases where there is the issue of dividend striping;
(iv) Under Rule 8D(2)(iii), what is disallowable is an amount equal to ½ percentage of the average value of investment the income from which does not or shall not form part of the total income. Thus, under sub-clause (iii), what is disallowed is ½ percentage of the numerator B in rule 8D(2)(ii). This has to be calculated on the same lines as mentioned earlier in respect of Numerator B in rule 8D(2)(ii). Thus, not all investments become the subject-matter of consideration when computing disallowance u/s 14A read with rule 8D. The disallowance u/s 14A read with rule 8D is to be in relation to the income which does not form part of the total income and this can be done only by taking into consideration the investment which has given rise to this income which does not form part of the total income.
BA (Hon's), LLB
Implications in income-tax of purchases from suspicious dealers
Jignesh R. Shah
B.Com., LL.B., F.C.A.
Advocate, High Court
1. Background and genesis of the burning issue
1.1 With the enactment of the Maharashtra Value Added Tax Act, 2002 ("MVAT Act") effective from 1 April 2005, there is now a multi-point levy of sales tax as opposed to the single-point levy of sales tax earlier. Under the new system sales tax or VAT is payable by each seller on the sale price charged by him (sections 3 and 4 of the MVAT Act). The primary liability to pay VAT is therefore that of the seller. However, under section 48 of the MVAT Act, the seller gets set-off of the VAT paid by the dealer from whom he has purchased the goods, upon fulfillment of the conditions laid down in section 48(2) of the MVAT Act. This is with a view to eliminate the cascading effect or double taxation. Effectively, the scheme of the law operates in such a manner that each dealer pays tax on the proportion of his own margin.
1.2 Under section 48(2) of the MVAT Act set-off of the VAT paid on the purchases made is granted to the dealer upon fulfillment of the following conditions: (a) the claimant dealer produces a tax invoice, containing a certificate that the registration certificate of the selling dealer was in force on the date of sale by him and the due tax, if any, payable on the sale has been paid or shall be paid; and (b) such certificate is signed by the selling dealer or a person duly authorized by him. Section 48(5) of the Act lays down, in effect, that the set-off shall not exceed the amount of tax actually paid. The Sales-tax Department has taken the stand that even if the dealer has produced a certificate to the above effect, if the person issuing the certificate has not actually paid the tax due, set-off will be denied to the purchasing dealer. Thus, instead of chasing the person who has not paid the tax due, the Sales-tax Department has chosen the easy route of denying the set-off and recovering the tax from the poor purchasing dealer, though he has fulfilled the conditions of section 48(2) by producing the requisite certificate. This view also finds favour with the Bombay High Court: Mahalaxmi Cotton Ginning Pressing and Oil Industries v The State of Maharashtra & Others (W. P. No. 33 of 2012—Order dated 11 May 2012) (SLP dismissed by the Supreme Court).
1.3 Owing to computerization in the Sales-tax Department, it was found out some time back that there were several mismatches between the input tax credit or set-off claimed by the purchasing dealers and the VAT actually paid by the dealers who sold goods to the claimant of the set-off. Thus, there were large amounts of set-off claimed by the purchasing dealers without there being corresponding actual payment of VAT by the concerned selling dealers. This unearthed a racket of bogus or hawala bills where the selling dealers have issued tax invoices but not paid the VAT. In effect, they have issued tax invoices without actually delivering the goods to the purchasing dealers. This has resulted in denial of the set-off claimed by the purchasing dealers and who are made liable to pay the difference, or, to put it differently, the tax liability of the dealer from whom they purchased the goods. The dealers are also made liable to pay interest under section 30 and, in some cases, penalty under section 29 of the MVAT Act. A list of some 2059 dealers who have issued tax invoices without actually paying the VAT has been displayed by the Sales-tax Department on its website mahavat.gov.in under the title "List of suspicious dealers who have issued false bills without delivery of goods".
1.4 On the basis of the information received from the Sales-tax Department, recently the Income-tax Department has started treating the purchases made by assessees from such dealers as "bogus purchases" and has started making disallowances in assessments under the Income-tax Act, 1961 ("the Act") in several cases involving crores of rupees. This has become a burning issue currently.
2. Basis of treatment of purchases as bogus; onus on the assessee and onus on the Department; evaluation of rival evidence
2.1 Several issues arise here in the context of the income-tax assessment:
(i) Can mere appearance of the name of the dealer on the website of the sales tax authorities be sufficient to treat purchases from him as bogus for income-tax purposes?
(ii) Can mere voluntary payment of differential VAT (and interest and penalty, if any, thereon) by the assessee by revising the VAT return and withdrawal/denial of the set-off under section 48 of the MVAT Act ipso facto tantamount to "admission" or "confession" of the purchases as bogus for income-tax purposes?
(iii) Would the position be different if, instead of the assessee voluntarily revising the VAT return, there is an assessment order by the Sales–tax Department denying the set-off and demanding the differential VAT and interest and penalty?
(iv) Can a copy of the statement made by such dealer before the sales tax authorities passed on to the AO be sufficient to hold purchases from such dealer as bogus in the assessee's hands for income-tax purposes?
(v) What defence can the assessee offer to any adverse statement by such a dealer? Is the AO duty-bound to provide a copy of the statement of the dealer made before the sales tax authorities to the assessee? Can the assessee ask for the cross-examination of the person making such statement? What if the AO does not provide a copy of the statement or an opportunity of cross-examination? [See, among others, Kishinchand Chellaram v CIT  125 ITR 713 (SC) and ITO v Permanand  107 TTJ (Jd) 395. See also CIT v Eastern Commercial Enterprise  210 ITR 103 (Cal).]
Going a step further, what if the person reiterates the adverse statement even in the cross-examination?
(vi) Is there an independent onus on the assessee otherwise also to prove the genuineness of the purchases? [See, among others, Indian Woollen Carpet Factory v ITAT  260 ITR 658 (Raj) and Asstt. CIT v Amar Mining Co.  121 ITD 273 (Ahd)(TM).]
(vii) What documents/evidence/details/workings should the assessee produce and what other steps should the assessee take to discharge the primary onus cast on him? When can the primary onus cast on him be said to be discharged?
(viii) Is it the responsibility of the assessee to produce the party from whom purchase has been made?
(ix) If the party does not appear, what can the assessee do? Can he ask the AO to issue a summons under section 131 of the Act? What if the summons issued by the AO is returned unserved with remarks such as "not found" or "left" or "not known"? Can this result in an inference adverse to the assessee?
Can the assessee absolve himself from the responsibility by contending that the purchases were made through a broker and hence the assessee did not know the supplier directly? Is, in such a case, the assessee supposed to produce the broker before the AO? In that event, should not the assessee have paid and debited brokerage expenses in his accounts?
(x) If the summons is served and accepted by the party but the party still does not appear, can it result in an adverse inference against the assessee?
(xi) Going a step further, if the party appears and makes a statement before the AO that the bills issued by him were bogus without actual delivery of goods, what would be the consequences?
(xii) If, on an enquiry into the bank account of the supplier, it is found that the supplier has withdrawn cash from his bank account immediately or shortly after the deposit of the assessee's cheque and has closed the bank account in a short time, what would be the impact?
(xiii) In order to prove the purchases as bogus is it necessary for the AO to prove that the supplier has paid back the cash to the assessee?
(xiv) Would the cancellation of the sales tax registration number of the supplier (at times retrospectively) (rightly or wrongly) by the Sales-tax Department have any bearing on the assessee's assessment?
(xv) Before treating the purchases as bogus and making disallowance/addition is it a precondition that the AO should reject the books of account under section 145(3)?
2.2 The above are only illustrative issues and not exhaustive. On a conjoint reading of several direct decisions on this issue—some in favour and some against—it is submitted that the issue boils down to weighing, appreciation and evaluation of the rival facts and evidence. It is observed practically that the weakest link in the chain of evidence is the non-appearance of the supplier before the AO in response to the summons issued under section 131 which is interpreted adversely. In this light, it is extremely important for the assessee to meticulously furnish all other documents, details, workings and evidence to prove the genuineness of the purchases.
2.3 While there are umpteen judicial decisions directly on this issue, a few are cited below as illustrations (and many more will be discussed in the meeting):
In favour of the assessee:
(i) CIT v Nikunj Eximp Enterprises Pvt. Ltd. (Bombay High Court) (ITXA No. 5604 of 2010—judgment dated 17 December 2012). (Corresponding ITAT decision ITA No. 8994/M/04—order dated 30 April 2010).
(ii) Babulal C. Borana v ITO  282 ITR 251 (Bom);
(iii) CIT v M. K. Bros.  163 ITR 249 (Guj);
(iv) CIT v Adinath Industries  252 ITR 476 (Guj) (Department's SLP dismissed by the Supreme Court— 247 ITR (St) 35);
(v) CIT v Hi Lux Automotive (P.) Ltd.  23 DTR (Del) 385;
(vi) Balaji Textile Industries (P.) Ltd. v ITO  49 ITD 177 (Mum);
(vii) ITO v Permanand  107 TTJ (Jd) 395;
(viii) ITO v Ghanshyam Steel Traders  107 Taman 126 (Ahd) (Mag);
(ix) G. G. Diamond International v Dy. CIT  104 TTJ (Mum) 809;
(x) Asstt. CIT v Kishan Lal Jewels (P.) Ltd.  147 TTJ (Del)
(xi) Rajesh P. Soni v Asstt. CIT  100 TTJ (Ahd) 892;
(xii) Sagar Bros. v ITO  56 ITD 561 (Kol); and
(xiii) J. H. Metals v ITO  77 ITD 71 (Asr)(TM) (scrape purchase made in cash from kabadis on internal vouchers).
Against the assessee:
(i) CIT v La Medica  250 ITR 575 (Del);
(ii) Sri Ganesh Rice Mills v CIT  294 ITR 316 (All);
(iii) Indian Woollen Carpet Factory v ITAT  260 ITR 658 (Raj);
(iv) Vicky Foods Pvt. Ltd. v Asstt. CIT  SOT 513 (Chd);
(v) Khandelwal Trading Co. v Asstt. CIT 55 TTJ (Jp) 261; and
(vi) Vijay Proteins Ltd. v Asstt. CIT  58 ITD 428 (Ahd).
3. Consequences of the purchases proved to be bogus
If the purchases are proved to be bogus, what disallowance/addition would follow? What could be the other consequences?
(i) Can the entire amount of purchases be disallowed, even if the corresponding sales and the closing stock are accepted as genuine? In case of a trading concern it is easier to establish a direct nexus between the purchases and sales, but what about a manufacturing concern where the goods purchased have lost identity due to consumption in the manufacturing process? This would also be so in case of builders/developers and infrastructure concerns. Further, what would be the implications when there is captive consumption of purchases for the production, erection and installation of a capital asset, such as a machine?
(ii) Can it result in addition to the gross profit rate? Which factors should be offered in defence by the assessee?
(iii) Can it result in addition as unexplained investment under section 69? If yes, addition of what amount—the entire amount of purchases or the peak balance? Would this not amount to making addition on presumptions?
(iv) Can it result in addition under section 69C as unexplained expenditure? If yes, addition of what amount—the entire amount or the peak balance?
(v) Can it attract disallowance under section 40A(3)?
(vi) Can it attract addition under section 68 as unexplained cash credit? See, for example, Indian Woollen Carpet Factory v ITAT  260 ITR 658 (Raj).
(vii) If purchases are treated as bogus, would the other related/incidental expenses be disallowed, such as, brokerage/commission, transportation/delivery charges, professional fees, etc.?
(viii) Can it attract disallowance under any other provision of the Act?
(ix) Charge of interest under various provisions of the Act.
(x) Imposition of penalty under section 271(1)(c).
(xi) Launching of prosecution under section 276C and/or section 277A.
(xii) Would the differential VAT paid by the assessee on denial of the set-off under section 48 of the MVAT Act be allowed as expenditure under section 37(1)? If yes, in which year—the year in which the purchases/sales made or the year in which the amount is actually paid, especially looking at section 43B?
(xiii) What about the deductibility of the interest and the penalty paid under the MVAT Act? Broadly speaking, interest which is of compensatory nature would be deductible as expenditure under section 37(1), but penalty, which is of penal nature, may not be deductible. For the principles in this regard, please see, among others, Prakash Cotton Mills P. Ltd. v CIT  201 ITR 684 (SC); CIT v Ahmedabad Cotton Mfg. Co. Ltd.  205 ITR 163 (SC) and CIT v N. M. Parthasarathy  212 ITR 105 (Mad).
4. Reopening of the concluded assessment based upon the information received from the Sales-tax Department
Can the AO reopen under section 147 of the Act the concluded assessments of the earlier years based upon the information received from the Sales-tax Department?
Section 147 postulates that the AO has to have a reason to believe that there is an escapement of income and he has to record reasons under section 148(2) before issuing a notice under section 148. Now, can the general statement made by a dealer before an altogether different authority, namely, the sales tax authority, to the effect that he indulges in supplying bogus bills without actually delivering goods, without specifically naming any assessee, constitute material to form a reason to believe for the AO for reopening assessment under section 147?
It is held that assessment cannot be made on the basis of material which is vague, general, non-specific and distant; that there has to be a live link or direct nexus between the material and the reasons recorded for reopening assessment under section 147. See, for example, the following decisions:
(i) ITO v Lakhmani Mewal Dass  103 ITR 437 (SC);
(ii) S. P. Agarwalla v ITO  140 ITR 1010 (Cal);
(iii) ITO v Dwarka Dass & Brothers  131 ITR 571 (Del);
(iv) Sarnath Services Co. P. Ltd. v ITO  329 ITR 110 (Del);
(v) CIT v SFIL Stock Broking Ltd.  325 ITR 285 (Del); and
(vi) Signature Hotels P. Ltd. v ITO  338 ITR 51 (Del).
See also contrary/distinguishable decision in Phool Chand Bajrang Lal v ITO  203 ITR 456 (SC).
It is also held that reopening of assessment can be done on the basis of direct or circumstantial evidence but not on mere suspicion, gossip or rumour. See Sheo Nath Singh v Appellate Assistant Commissioner  82 ITR 147 (SC).
However, the moment the notice under section 148 for reopening of assessment under section 147 is received by an assessee, he should immediately ask for a copy of the reasons recorded for reopening, because the AO is obliged to give the same and also consider the objections raised by the assessee to the reopening. See, among others, GKN Driveshafts (India) Ltd. v ITO  259 ITR 19 (SC). If the AO fails to provide a copy of the reasons recorded till the completion of the assessment, though specifically asked for by the assessee, the reassessment order is invalid. See CIT v Videsh Sanchar Nigam Ltd.  340 ITR 66 (Bom).
5. Remedy for the assessee
(i) Appeal to the Commissioner of Income-tax (Appeals) under section 246A and thereafter to the Tribunal under section 253. Practically speaking, looking at the current atmosphere, the earliest forum before which an assessee can really hope to get some justice is the Tribunal.
(ii) Approaching the Settlement Commission under Chapter XIX-A of the Act.
(iii) Writ petition to the High Court under Article 226 of the Constitution challenging the validity of the notice for reopening of assessment.
(iv) In the event of prosecution, compounding of offences under section 279(2).
* * *
|"1.||Whether on the facts and circumstances of the case, the learned CIT(A) was right in holding that in absence of issuance of notice under s. 143(2), the assessment was null and void not appreciating provisions under s. 292BB of the IT Act, 1961 ?|
|2.||Whether on the facts and circumstances of the case, the learned CIT(A) was right in holding that issue of notice under s. 148 was without valid reasons and hence the assessment is a nullity ?|
|3.||The learned CIT(A) has erred in law and on facts in deleting the addition of Rs. 25,16,103 made under various heads like unexplained investment, loans raised and unexplained capital, when assessee failed to explain the same."|
|(i)||Decision of Allahabad High Court in the case of Virendra Dev Dixit v. Asstt. CIT  331 ITR 483, in which it was held that the AO must issue notice under s. 143(2) within the prescribed time-limit. The appeal of the assessee was allowed.|
|(ii)||Decision of Hon'ble Supreme Court in the case of Asstt. CIT v. Hotel Blue Moon  321 ITR 362/188 Taxman 113, in which it was held that the issue of notice under s. 143(2) within prescribed time is mandatory.|
|(iii)||Decision of Delhi High Court in the case of CIT v. CPR Capital Services Ltd.  330 ITR 43/11 taxmann.com 150, in which it was held as under :|
|"Held, dismissing the appeal, that mere noting in the order sheet would not suffice and the copy of the notice issued under s. 143(2) of the Act was not available on record. Since the Department had failed to produce the copy of the notice under s. 143(2) of the Act, there was no option but to agree with the findings of the Tribunal that no such notice was prepared and served upon the assessee. In the absence of this mandatory requirement of issuing statutory notice under s. 143(2) of the Act, the Tribunal had rightly quashed the assessment as null andvoid."|
|(iv)||Decision of Punjab & Haryana High Court in the case of CIT v. Cebon India Ltd.  347 ITR 583/ 184 Taxman 290 in which it was held as under :|
|"CIT(A) as well as the Tribunal having recorded concurrent finding that the notice under s. 143(2) was not served on the assessee within the stipulated time, impugned assessment was not valid; absence of notice is not a curable defect under s. 292BB."|
|(v)||Decision of Gujarat High Court in the case of Dy. CIT v. Mahi Valley Hotels & Resorts  287 ITR 360 in which it was held—|
|"Notice under s. 143(2) having been issued beyond the statutory period of one year from the end of the month in which the return was filed, CIT(A) and the Tribunal were correct in holding that the assessment was void ab initio; contention that the objection raised by the assessee was not maintainable as it was raised for the first time before the CIT(A) and that there was acquiescence and/or waiver on the part of the assessee as it had participated in the proceedings has no merit."|
|(vi)||Decision of Madras High Court in the case of Sapthagiri Finance & Investments v. ITO  25 taxmann.com 34l/210 Taxman 78 (Mag.), in which it was held that merely because the matter was discussed with the assessee and signature is affixed, it does not mean rest of procedure of notice under s. 143(2) stood complied with.|
|(a)||not served upon him; or|
|(b)||not served upon him in time; or|
|(c)||served upon him in an improper manner :|
|provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment."|
De-facto boycott of a particular ITAT member by seeking adjournment is deemed 'contempt of court'
IT : CAs & lawyers can't seek adjournments on the ground that objectivity of ITAT member is not beyond doubt even if petition in that behalf is pending before the jurisdictional High Court. CA/Advocate seeking adjournment for the reason that he doesn't want to appear before a particular Bench/member of ITAT commits 'contempt of court' by 'forum shopping' or 'de facto boycott' of a judicial officer. It is not open to CA/Advocate/bar association/group of ARs to seek adjournments on the ground that they have issues against a particular ITAT member as this amounts to de facto boycott of a judicial officer. No adjournment of hearing by ITAT for the reason that CA/Advocate doesn't want to appear before a particular Bench/member
(Per Judicial Member)
• I.T.A.T. is creation of Income Tax Act through section 252 and under section 252 the Central Government shall constitute an Appellate Tribunal to adjudicate the issues raised between the assessee and the Income-tax Department.
• The professionals either Advocates or Chartered Accountants can be engaged to prosecute the appeals on behalf of the assessees in a manner in which the assessee wants.
• Infact after filing the Power of Attorney, the professionals (Advocate or Chartered Accountant) will step into the shoes of the assessee and they will represent the case in a manner beneficial to the assessee.
• If a particular Advocate or a Chartered Accountant is not comfortable or has reservation with a particular judicial forum, it is his sweet will for making a representation before the said judicial forum; but for that reason the judicial forum cannot be forced to adjourn all the matters for an unlimited period where the stakes of the revenue are substantially involved.
• The I.T.A.T. is created to adjudicate the disputes amongst the Income-tax Department and the assessee.
• If a particular advocate has some reservation with a particular Bench, it is for him to take a decision in this regard.
• Similar is the position with regard to the assessee as he has to take a final decision with regard to the appointment of his advocate or representative to represent his case before the judicial authority.
• The judicial authority, be it may be the Tribunal are concerned about the material placed before them while adjudicating the issues involved irrespective of the personalities of the Advocates appearing before him representing the case of the parties.
• In the light of these facts, when the Judicial Member has already withdrawn his order of recusal from hearing of the cases being represented by Shri SKG, Advocate or Shri PKK, C. A., there is no valid reason for the adjournment on the ground that the Judicial Member has recused himself from hearing the cases of Shri SKG, Advocate and more so in the light of the facts that about 25% of the appeals pending before the Bench are being represented by Shri SKG, Advocate or Shri PKK, C. A.
• If Shri SKG, Advocate and Shri PKK, C. A. have any reservation with the Bench comprising of Judicial Member, they may take independent decision with regard to their representation before the Bench.
• But for the reason that they do not want to represent the cases, the hearing cannot be adjourned and assessee would be at liberty to make some other arrangement to prosecute his case in effective manner.
• In the instant case the Judicial Member has already withdrawn his recusal from hearing the case of Shri SKG, Advocate vide order dated 08/02/2013 passed in the case of Onkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012.
• Therefore, the appeals being represented by Shri SKG, Advocate and Shri PKK, C. A. can be heard by the Bench comprising of the Judicial Member and the assessee would be at liberty to make some alternate arrange if Shri SKG, Advocate or Shri PKK, C. A. do not wish to appear before the said Bench.
• It is for the assessee to take a decision in this regard as through whom he wants to get his matter represented.
• There is no dearth of tax experts/Tax Advocates in our country more particularly in Lucknow and the assessee is at liberty to hire the services of any best professionals but for the reason that a particular Advocate or the Chartered Accountant does not want to appear before the Tribunal, the hearing of the appeal cannot be adjourned.
• Vide order dated 27-5-2013, it was made very clear to the assessee that since the matter has been received from Hon'ble High Court on remand for disposal within a period of six months, no further adjournment would be granted.
• Despite these facts, the assessee moved the application for adjournment.
• It is also pertinent to mention here that on receipt of the last order dated 27-5-2013 of the Tribunal, the assessee moved to the High Court for clarification through application dated 30th May, 2013.
• The Hon'ble High Court passed an order dated 5th March, 2013 and the assessee remained silent till 30th May, 2013.
• Once the Tribunal has taken a tough stand and adjourned the hearing with the last opportunity with the certain directions, the assessee moved an application to the High Court for clarification on 30th May, 2013.
• The clarification sought is only with regard to the words 'on merit on other points'. The assessee through its application requested the Hon'ble High Court to insert the word "and" between the words "on merit and on other points."
• No confusion was ever raised with regard to the interpretation of these words by the Tribunal but this application was made only to create the ground for seeking adjournment before the Tribunal.
• Therefore, it appears that the assessee is trying to seek adjournment for one reason or the other in order to delay the disposal of the appeal pursuant to the direction of Hon'ble High Court.
• In the light of these facts, there is no merit in the request of the adjournments moved by the assessee. Accordingly adjournment request rejected.
Per Accountant Member
• It is not open to even any bar association or other interest groups also, much less an individual lawyer or group of representatives – as is the case before us, to hold functioning of this Tribunal to ransom by seeking adjournments on the ground that they have some issues, howsoever legitimate as they might think these issues are, against a particular judicial officer.
• That is de facto boycott of a judicial officer and a strike against the judicial office he holds.
• As a matter of fact, as Hon'ble Supreme Court has observed, such boycotts or strikes are nothing but a contempt of court and a court itself also should not become privy to this by "adjourning the case on the ground that lawyers are on strike".
• The decisions to take whether or not a judicial officer should hear a particular case or not is to be taken by the judicial officer or by the well settled administrative guidelines and judicial traditions.
• Just because, for whatever reasons, a crisis situation has been deprived of an appropriate solution, no direct or indirect interference in judicial powers of a judicial officer can be justified. No short cuts are permissible for anyone – shorts cuts such as adjourning the cases on the board or causing adjournment of such cases, or short cuts resulting in compromising with independence and dignity of a judicial officer.
• The functioning of this Tribunal obviously cannot go on when a lawyer, or a group of lawyers, seeks an adjournment on the ground that objectivity of the judicial officer is not beyond doubt and that there is a petition to that effect is pending before higher authorities.
• No judicial institution can be allowed to function if these reasons are treated as good enough to grant adjournments.
• A judicial officer, when performing judicial duties, is not performing in a swaymvar; he is discharging solemn duties of rendering, impartially and fearlessly, justice pure and simple. '
• Representatives of taxpayers cannot be allowed to choose the judicial officers for adjudicating upon their grievances.
• A judicial officer need not bother about how representatives of the taxpayers will react to his judgments, or how will even his own colleague on multi member bench view his approach to the judicial work.
• There should be harmony in functioning but not at the cost of independence.
• There should be healthy respect for each other but not at the cost of betraying one's own conscious and commitment to the time-tested values.
• There should be brotherhood amongst all but not at the cost of damage to the public good.
Onkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012.
 34 taxmann.com 296 (Lucknow - Trib.)
IN THE ITAT LUCKNOW BENCH 'A'
Kanpur Plastipack Ltd.
Income -tax Officer, Range - 6(2), Kanpur
Sunil Kumar Yadav, JUDICIAL MEMBER
AND PRAMOD KUMAR, ACCOUNTANT MEMBER
AND PRAMOD KUMAR, ACCOUNTANT MEMBER
IT Appeal No. 1002 (Luck.) of 2006
[ASSESSMENT YEAR 1997-98]
[ASSESSMENT YEAR 1997-98]
JUNE 21, 2013
S.K. Garg and Pradeep Kumar Kapoor for the Appellant. K.M. Dixit for the Respondent.
Sunil Kumar Yadav, Judicial Member - This appeal is preferred by the assessee against the order of CIT(A) pertaining to assessment year 1997-98, inter alia, on various grounds which are extracted as under:
"1. BECAUSE the learned "CIT (Appeals)" has erred in law and on facts in upholding the validity of initiation of proceedings under section 147 as also the reassessment order dated 29th March, 2004 (passed in pursuance thereof), by observing that there was escapement of income on various counts, each one of which was sufficient to confer requisite jurisdiction on the Assessing Officer.
1.2 BECAUSE as on the date of recording the "reasons" for the purposes of initiating proceedings under section 147, there existed merely a show cause notice issued by the Central Excise Authorities in pursuance of search carried out by them on 6.1.1998 at the business premises of the appellant and such a show cause notice by itself, could not have constituted the requisite material, for the purposes of initiating the proceedings under section 147.
1.3 BECAUSE even on the basis of said show-cause notice, it transpired that the appellant had already disclosed sales revenue of the order of Rs.89,30,133/- as per 3rd set of invoices, which were higher in volume than the sales revenue of Rs.72,51,612/- as had been worked out on the basis of 2nd set of invoices (which represented real invoices), and no inference about escapement of income could have been drawn on that count.
1.4 BECAUSE similarly the remaining part of the "reasons recorded" was also not relevant for the purposes of drawing an inference about escapement of income and initiation of proceedings under section 147 on such counts too is bad in law.
2. BECAUSE in view of the fact that the appellant's objection to the initiation of proceedings under section 147 on various grounds, remained unadjudicated upon by the learned Assessing Officer, the reassessment order dated 29.3.2004 passed under section 143 (3) read with section 147, was liable to be declared as null and void.
3.1 BECAUSE the jurisdiction notice under section 148 dated 28.5.2002 having been served on one Alok Saxena, who was neither the Principal Officer of the appellant company nor any one authorised in this behalf (by the Principal Officer), initiation of proceedings under section 147 stood vitiated and the Id. CIT (Appeals) on a due consideration of this aspect of the matter, should have quashed the very assessment proceedings as also the assessment order dated 29.3.2004 passed thereunder.
3.2 BECAUSE the appellant's contention about the invalidity of the "service of notice" was fully covered by the pronouncements made by the jurisdictional High Court, some of which had been specifically cited during the appellate proceedings for the assessment year 1996-97 (which were simultaneously going on) and the learned CIT (Appeals) has erred in not following the said case laws, and in deciding the overall issue against it (the appellant).
WITHOUT PREJUDICE TO THE AFORESAID
4. BECAUSE the learned CIT (Appeals) has erred in law and on facts in not accepting the appellants computation for relief under section 80 HHC.
5.1 BECAUSE the order passed by the Hon'ble Settlement Commission under Excise Laws has been wrongly applied for coming to the conclusion that there was suppression of sales of the value of Rs.72,51,612/- and on that basis in making/upholding the addition of the corresponding sum.
5.2 BECAUSE the order passed by the Hon'ble Settlement Commission under the Excise laws, was in an altogether different context and the same could not have been followed and applied for the purpose of making/sustaining the impugned addition of Rs.72,51,612/- under the Income-tax Act.
5.3 BECAUSE the sales in terms of quantity as had been effected by the appellant during the relevant financial year, were covered fully by the quantitative tally and in view of the fact that no production (over and above the figures mentioned in the quantitative tally) was either feasible or shown to have been carried out by the appellant, no inference about the removal of goods (other than what had been recorded in the books of account) could have been legitimately drawn.
6. BECAUSE the learned CIT (Appeals) himself, having found and held that "the appellant has not been able to prove that there was any purchase of extra material .......... " vide para 20 of the appellate order dated 6.7.2006 relating to assessment year 1996-97 (as has been applied in this year also) should have accepted the appellant's version of production and sale thereof and consequently the addition of Rs.72,51,612/- was liable to be deleted.
7. BECAUSE there being no evidence brought on record by the authorities below, which could go to show that the goods covered by the disputed invoices had reached the destination twice, no addition on account of alleged suppression of turnover could have been made.
8. BECAUSE in any case, the books of account having not been rejected, no inference about the unrecorded sales having been made by the appellant, could have been validly drawn and the addition of Rs. 72,51,612/- made/ sustained by the authorities below is wholly illegal.
9. BECAUSE wholly without prejudice to the grounds no. 5.1 to 8 above, the authorities below were not justified either on facts or in law to convert the entire sale aggregating Rs. 72,51,612/- into the income of the appellant and fastening tax liability on the said sum.
10. BECAUSE the order appealed against is contrary to the facts, law and principles of natural justice."
2. This appeal came up for hearing on 31st May, 2013. The learned Counsel for the assessee Shri Praeep Kumar Kapoor, Chartered Accountant has moved two sets of applications for adjournment in his individual capacity and not on behalf of the assessee. In one application it is contended that Hon'ble High Court of Allahabad has restored the appeal to the Tribunal to decide the appeal expeditiously, preferably within a period of six months from the date of production of certified copy of this order. Therefore, the time limit would expire in the month of September, 2012. Against said judgment of Hon'ble High Court, a petition dated 30th May, 2013 has been moved before the Hon'ble High Court for certain clarification. Copy of the same was enclosed along with the application. It was further contended that looking to the general practice followed by the Tribunal, it is expected that the Hon'ble President would be pleased to constitue a Bench in the month of July 2013. In this application it was also contended by the learned Counsel for the assessee that the Judicial Member has recused himself from hearing of Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A., therefore, it would have been fitness of the things that the matter be referred to the Hon'ble President for constituting Bench for deciding the said appeals of which the Judicial Member is not a party. In the last para, it was also contended by Shri Pradeep Kumar Kapoor, C. A. that looking to the suggestions given by the Bench through order sheet dated 27th May, 2013 that Shri S. K. Garg, Advocate has no objection for engaging the other counsel by the assessee for which he undertakes to file no objection also from Shri S. K. Garg, Advocate if so needed. Through second set of application it has been stated that Shri S. K. Garg, Advocate has come back after attending the proceedings before the Settlement Commission. However, he could not make proper preparation of the case therefore, the matter be adjourned to July, 2013.
3. The learned Counsel for the assessee Shri S. K. Garg, Advocate further contended that since the contempt proceedings have been initiated by the Hon'ble High Court of Allahabad, Lucknow Bench against him and Shri Pradeep Kumar Kapoor, C. A. on reference made by the Judicial Member, the judicial proprietary demands that the matter represented through him should not be heard by the Bench constituting Judicial Member as a party of it. Therefore, in the interest of justice, the hearing may be adjourned.
4. The learned CIT, D.R., Shri K.M. Dixit strongly opposed the request of adjournment with the submission that Hon'ble High Court of Allahabad has restored the matter to the Tribunal with the direction to decide the appeal on merit within a period of six months. This order was passed in March, 2013, therefore, the time of six months would expire in first week of September, 2013. He also pointed out that the Lucknow Bench of the Tribunal is not regularly functioning. Now the Accountant Member has come on tour only for two weeks, therefore, the matter should be heard and disposed of within the prescribed period.
5. Having heard the rival submissions and from the careful perusal of the material available on record, we find that the Hon'ble High Court of Allahabad has restored the matter to the Tribunal with a direction to dispose of the appeal on merits on other points vide judgment dated 05/03/2013 within six months. Therefore, the time available with the Tribunal for the disposal of the appeal on merits is upto first week of September, 2013. It is pertinent to mention here that Lucknow Bench of the Tribunal is not regularly functioning since November, 2012 and thereafter the Accountant Member was only sent on tour in the month of March, 2013 for two weeks and 2nd time in the month of May, 2013 again for two weeks. In the light of these facts, it cannot be assumed or presumed that the Accountant Member may come on tour in the month of July, 2013. Therefore, it is in the fitness of things when the Accountant Member is on tour, this appeal should be heard and disposed of pursuant to the directions of Hon'ble High Court.
6. So far as issue of reclusal of the Judicial Member from hearing of the case of Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. is concerned, we would like to place certain facts on record in order to understand the real controversy arisen in this Bench.
7. On filing of copy of representation made by Shri S. K. Garg, Advocate to the Hon'ble President of I.T.A.T. in the case of Sumit Kumar Rastogi in I.T.A. No.472/Lkw/2011 and C.O. No.42/Lkw/2012 on 30th August, 2012 containing contemptuous and scurrilous allegations against the Judicial Member, the Judicial Member recused him from hearing of those cases which were being represented by Shri S. K. Garg, Advocate by passing a speaking order. Copies of the proceedings were duly sent to the Hon'ble President of the I.T.A.T. with a request to issue necessary instructions as to how to deal with the situation but the Hon'ble President instead of issuing necessary instructions in this regard, has chosen to remain salient on the subject. In order to maintain the dignity of the Institution, the Judicial Member took cognizance of the representation made by Shri S. K. Garg, Advocate to the Hon'ble President, I.T.A.T. and made a reference on 19/10/2012 for criminal contempt of court u/s 15(2) of the Contempt of Court Act, 1971 against Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. to the Hon'ble High Court of Allahabad and consequent thereto the Hon'ble High Court has taken a cognizance of the same and criminal contempt case against Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. was registered vide Contempt No. 310 of 2013 and now the matter is subjudice before the Hon'ble High Court Allahabad at Lucknow Bench in the case styled as State of U.P. v. Shri S. K. Garg, Advocate and Another.
8. It was brought to the notice of Judicial Member in the administrative capacity that almost 25% of the appeal pending before the I.T.A.T., Lucknow Bench are being represented by Shri S. K. Garg, Advocate, therefore, it would not be fair to keep all the appeals in abeyance as substantial amount of revenue is involved therein and Revenue is pressing hard for its fixation. Having realized these facts, the Judicial Member, in the administrative capacity, has directed the Registry to list all the appeal for hearing vide order dated 15/10/2012. Thereafter, one appeal in the case of Omkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012 of Shri S. K. Garg, Advocate was listed before the Judicial Member, while hearing the SMC case and the learned Counsel for the assessee Shri Pradeep Kumar Kapoor, C. A. sought adjournment, which was strongly opposed by learned D.R. While disposing of this adjournment application, it was categorically observed by the Tribunal that the reclusal of the Judicial Member from hearing the case being represented by Shri S. K. Garg, Advocate was made in a peculiar circumstances. Later on a cognizance of the representation was taken and reference for criminal contempt of court was made against Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. to the Hon'ble High Court of Allahabad and the matter is subjudice before the Hon'ble High Court, therefore, the Judicial Member has no reservation in hearing the appeals of any assessee being represented by any Advocate/Chartered Accountant including Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. Thereafter, the appeal was argued by Shri Pradeep Kumar Kapoor, C. A. and the appeal was disposed of vide order dated 16/04/2013. The order passed by the Judicial Member in SMC has not been challenged by the assessee. Therefore, once it has been made clear by passing a judicial order vide order dated 08/02/103 in the case of Onkar Nagriya Sahkari Bank v. CIT in I.T.A. No. 572/Lkw/2012, that the Judicial Member has no reservation in hearing the appeals of any assessee being represented by Shri S. K. Garg, Advocate or Shri Pradeep Kumar Kapoor, C. A. after making a reference of criminal contempt of court against Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. to the Hon'ble High Court, the controversy with regard to the reclusal of Judicial Member from hearing cases of Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. no longer subsists. For the sake of reference, the relevant order is extracted hereunder:
Present for the assessee : Shri Pradeep Kumar Kapoor, C. A.
Present for the Revenue : Smt. Ranu Biswas, D.R.
On the last date of hearing i.e. 5.2.2013 the assessee moved an application for adjournment having relied upon the order of the Tribunal dated 30.8.2012 passed in ITA No. 472/LKW/2011 and CO No.14/LKW/2012. Copy of this application was given to the Ld. D.R. The Ld. D.R. strongly opposed the request for adjournment of the appeal.
The Ld. counsel for the assessee, Shri. Pradeep Kumar Kapoor, C.A. has now agreed to argue the appeal before the Bench as he has received instruction from his client (assessee) to argue the case and he has no reservation with this Bench.
The aforesaid order dated 30.8.2012 in ITA No. 472/LKW/2011 and CO No.11/LKW/2012, through which I recused myself from the cases being represented by Shri. S. K. Garg, Advocate, was passed on receipt of the copy of representation addressed to the Hon'ble President, ITAT by Shri. S. K. Garg, Advocate. The said order was passed under the peculiar circumstances. Thereafter cognizance of the representation was taken and reference for criminal contempt of court against Shri. S. K. Garg, Advocate and Shri. Pradeep Kumar Kapoor, C.A. was made to the Hon'ble High Court of Allahabad and the matter is sub judice before the Hon'ble High Court of Allahabad.
Now under the changed circumstances, I have no reservation in hearing the appeal of any assessee being represented by any Advocate/C.A. including Shri. S. K. Garg, Advocate and Shri. Pradeep Kumar Kapoor, C.A. Decision in this regard is left upon the respective assessee. Accordingly, the arguments of both the parties to this appeal are heard and the order is reserved."
9. It is pertinent to mention here that I.T.A.T. is creation of Income Tax Act through section 252 of the I. T. Act and u/s 252 the Central Government shall constitute an Appellate Tribunal to adjudicate the issues raised between the assessee and the Income-tax Department. The professionals either Advocates or Chartered Accountants can be engaged to prosecute the appeals on behalf of the assessees in a manner in which the assessee wants. Infact after filing the Power of Attorney, the professionals (Advocate or Chartered Accountant) will step into the shoes of the assessee and they will represent the case in a manner beneficial to the assessee. If a particular Advocate or a Chartered Accountant is not comfortable or has reservation with a particular judicial forum, it is his sweet will for making a representation before the said judicial forum but for that reason the judicial forum cannot be forced to adjourn all the matters for an unlimited period where the stakes of the revenue are substantially involved. The I.T.A.T. is created to adjudicate the disputes amongst the Income-tax Department and the assessee. If a particular advocate has some reservation with a particular Bench, it is for him to take a decision in this regard. Similar is the position with regard to the assessee as he has to take a final decision with regard to the appointment of his advocate or representative to represent his case before the judicial authority. The judicial authority, be it may be the Tribunal are concerned about the material placed before them while adjudicating the issues involved irrespective of the personalities of the Advocates appearing before him representing the case of the parties. In the light of these facts, when the Judicial Member has already withdrawn his order of reclusal from hearing of the cases being represented by Shri S. K. Garg, Advocate or Shri Pradeep Kumar Kapoor, C. A., there is no valid reason for the adjournment on the ground that the Judicial Member has recused himself from hearing the cases of Shri S. K. Garg, Advocate and more so in the light of the facts that about 25% of the appeals pending before the Bench are being represented by Shri S. K. Garg, Advocate or Shri Pradeep Kumar Kapoor, C. A.
10. The conduct of the Advocates with regard to the representation on behalf of its clients was examined by the Apex Court in various judgments. In the case of Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra Bombay & Others 1984 (2) SCC 556, their Lordships have observed that an advocate stands in a loco parentis towards the litigants. Therefore, he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsel's paramount duty is to the client. The client is entitled to receive disinterested, sincere and honest treatment. It was further observed that no advocate can take it for granted that he will appear in the court according to his whim or convenience. It would be against professional ethics for a lawyer to abstain from the court when the cause of his client is called for hearing or further proceedings.
11. In the case of Tahil Ram Issardas Sadarangani & Ors. v. Ramchand Issardas Sadarangani & Anr. 1993 Supp.(3) SCC 256, their Lordships have observed that by striking work, the lawyers fail in their contractual and professional duty to conduct the cases for which they are engaged and paid. In the case of Common Cause A Registration. Society v. Union of India & Ors. 1994 (5) SCC 557, it was further observed that since litigants have a fundamental right to speedy justice it is essential that cases must proceed when they appear on board and should not ordinarily be adjourned on account of the absence of the lawyers unless there are cogent reasons to do so. If cases get adjourned time and again due to cessation of work by lawyers it will be in the end result in erosion of faith in the justice delivery system which will harm the image and dignity of the court as well.
12. Noting casual and indifferent attitude of some of the lawyers and expecting improvement in quality of service the Hon'ble Apex court in the case of Sanjiv Datta, Deputy Secretary, Ministry of Information & Broadcasting, New Delhi etc. 1995 (3) SCC 619 held as under:
"Of late, we have been coming across several instances which can only be described as unfortunate both for the legal profession and the administration of justice. It becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their hand to improve the quality of the service they render both to the litigant-public and to the courts, and to brighten their image in the society. Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings - many time even illegible and without personal check and verification, the non-payment of court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and omissions. They not only amount to the contempt of the court but do positive disservice to the litigants and create embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system."
13. In the case of Brahma Prakash Sharma v. State of UP 1953 SCR 1169, a Constitution Bench of Hon'ble Supreme Court has held that a resolution passed by the Bar Association expressing want of confidence in the judicial officers amounted to scandalizing the court to undermine its authority which amounted to contempt of court.
14. In the case of Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. 1999 (1) SCC 37, the Hon'ble Apex court has held; "Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar or tactics of filibuster adopted by any member thereof." High Courts are duty bound to insulate judicial functionaries within their territory from being demoralized due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open court.
15. Their Lordships further held in the aforesaid cases that if any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquett require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No court is obliged to adjourn a cause because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating.
16. In the case of Lt. Col. S. J. Chaudhary v. State (Delhi Admn) 1984 (1) SCC 722, it was held that it is the duty of every Advocate who accepts a brief to attend the trial and such duty cannot be overstressed. It was further reminded that having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. A lawyer is under obligation to do nothing that shall detract from the dignity of the court of which he is himself a sworn officer and assistant. He should at all times pay differential respect to the judge and scrupulously observe the decorum of the courtroom.
17. In the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor and Others, Appeal No. 6385 of 2000, vide judgment dated 14/11/2000, their Lordships of Apex Court have made a reference to Warvelle's Legal Ethics at page 182 where it has been stated "of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore the aforesaid mutual respect is the sine qua non for the efficient functioning of the solemn work carried on in courts of law. But that does not mean that any advocate or a group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions. At any rate, no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court."
18. In the case of Ramon Services Pvt. Ltd. (supra),their Lordships of Apex Court having examined various judgments on this aspect have concluded as under:
"Some courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued "restoration of the confidence of the common man in the institution of judiciary. It is not too late even now for the courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singh's case (supra). Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting courts may also be contributory to the contempt of this Court."
19. The issue of repeated adjournments on different grounds was examined by the Apex Court in the case of Shiv Cotex v. Tirgun Auto Plast P. Ltd. & Ors in Civil Appeal No. 7532 of 2011 reported at 2011 (9) SCC 678 and their Lordships have observed as under:
"What should the court do in such circumstances? Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent spectator and leave control of the case to a party to the ease who has decided not to take the case forward? It is sad, but true, that the litigants seek - and the courts grant -adjournments at the drop of the hat. In the cases where the judges are little pro-active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit.
16. No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 CPC should be maintained. When we say 'justifiable cause' what we mean to say is, a cause which is not only 'sufficient cause' as contemplated in sub-rule (1) of Order XVII CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100 CPC. We find no justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the plaintiff an opportunity to produce evidence when no justification for that course existed."
20. In the light of the aforesaid judicial pronouncements, we are of the considered view that if Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. have any reservation with the Bench comprising of Judicial Member, they may take independent decision with regard to their representation before the Bench. But for the reason that they do not want to represent the cases, the hearing cannot be adjourned and assessee would be at liberty to make some other arrangement to prosecute his case in effective manner. In the instant case the Judicial Member has already withdrawn his recusal from hearing the case of Shri S. K. Garg, Advocate vide order dated 08/02/2013 passed in the case of Onkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012. Therefore, the appeals being represented by Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. can be heard by the Bench comprising of the Judicial Member and the assessee would be at liberty to make some alternate arrange if Shri S.K. Garg, Advocate or Shri Pradeep Kumar Kapoor, C. A. do not wish to appear before the said Bench.
It is for the assessee to take a decision in this regard as through whom he wants to get his matter represented. There is no dearth of tax experts/Tax Advocates in our country more particularly in Lucknow and the assessee is at liberty to hire the services of any best professionals but for the reason that a particular Advocate or the Chartered Accountant does not want to appear before the Tribunal, the hearing of the appeal cannot be adjourned.
21. Vide order dated 27/05/2013, it has been made very clear to the assessee that since the matter has been received from Hon'ble High Court on remand for disposal within a period of six months, no further adjournment would be granted. Despite these facts, the assessee has moved the application for adjournment. It is also pertinent to mention here that on receipt of the last order dated 27/05/2013 of the Tribunal, the assessee has moved to the High Court for clarification through application dated 30th May, 2013. The Hon'ble High Court has passed an order dated 5th March, 2013 and the assessee remained salient till 30th May, 2013. Once the Tribunal has taken a tough stand and adjourned the hearing with the last opportunity with the certain directions, the assessee has moved an application to the High Court for clarification on 30th May, 2013. The clarification sought is only with regard to the words 'on merit on other points'. The assessee through its application requested the Hon'ble High Court to insert the word "and" between the words "on merit and on other points." No confusion was ever raised with regard to the interpretation of these words by the Tribunal but this application was made only to create the ground for seeking adjournment before the Tribunal. Therefore, it appears that the assessee is trying to seek adjournment for one reason or the other in order to delay the disposal of the appeal pursuant to the direction of Hon'ble High Court. In the light of these facts, we find no merit in the request of the adjournments moved by the assessee. We accordingly rejected the same and heard the appeal.
22. During the course of hearing of the appeal, the learned Counsel for the assessee Shri S. K. Garg, Advocate has invited our attention that while disposing of this appeal, the Tribunal has knocked down the reopening of the assessment on the ground that notice was issued by the ACIT and not by the Jt. CIT. Against this order of the Tribunal, an appeal was preferred before the Hon'ble High Court of Allahabad by the Department and while adjudicating the appeal their Lordships of Hon'ble Allahabad High Court have reversed the order of the Tribunal by holding that notice for reassessment was issued by the competent authority. The Hon'ble High Court of Allahabad has restored the matter to the Tribunal to decide the assessee's appeal on merits on other grounds, which means the other grounds including the grounds on which reopening was challenged. It was also challenged on the ground that the reasons recorded by the Assessing Officer were not supplied to the assessee despite his request. Therefore, the matter may be remanded to the Assessing Officer to adjudicate the issue after supplying the reasons for reopening and obtaining the comments of the assessee thereon. These facts of not supplying the reasons to the assessee were not disputed by the learned CIT, D.R., however, he objected to the remanding the matter back to the Assessing Officer.
23. Having given a thoughtful consideration to the rival submissions and material available on record, we find that Hon'ble High Court of Allahabad has held through its judgment that the notice was validly issued by the competent authority, therefore, on this ground the reopening cannot be challenged but with regard to the other grounds challenging the reopening of the assessment, no finding was given as it was not the subject matter of dispute before the Hon'ble High Court. The Tribunal has knocked down the assessment only on the ground that the notice was not issued by the competent authority. Except this ground, other grounds challenging the reopening of the assessment were not adjudicated by the Tribunal. Now while dealing with other grounds on merits, we are of the view that the assessee has raised the ground challenging the reopening of the assessment that the reasons recorded were not supplied to the assessee despite his request, therefore, he was deprived of from filing the objection to it. Since this factual aspect was not disputed by the Revenue, we are of the view this issue requires fresh adjudication by the Assessing Officer. We accordingly, following the judgment of Apex Court in the case of GKN Driveshaft v. Income Tax Officer  259 ITR 19 (SC) in which it has been held that Assessing Officer is bound to furnish reasons within a reasonable time and on receipt of reasons the noticee is entitled to file objection to issuance of notice and the Assessing Officer is bound to dispose the same by passing speaking order, set aside the order of CIT(A) and restore the matter to the file of the Assessing Officer with a direction to supply the copy of reasons recorded to the assessee and after obtaining the objection from the assessee, dispose of the same. When the matter is restored to the Assessing Officer, he may also examine the other objections raised for reopening of the assessment by the assessee before the Tribunal.
24. With regard to the quantum addition made on account of suppression of sale of the value at Rs. 72,51,612/- raised through ground No. 4 to 9, it was contended that entire order of the CIT(A) except the last para 7 was devoted to the controversy with regard to the validity of reopening and notice u/s 148 of the Act. In para 7, relying upon the appellate order for assessment year 1996-97, the CIT(A) confirmed the disallowance made by the Assessing Officer. It was also contended that while estimating unaccounted sales at Rs. 72,51,612/- the Assessing Officer has not applied his mind independently. He simply followed the order of the Settlement Commission and placed reliance upon the contentions raised before the Excise Authorities. Therefore, the matter may be restored to the Assessing Officer to adjudicate the issue independently after obtaining the comments of the assessee and also making necessary verification with different sets of invoices on the basis of which extra Excise Duty was worked out.
25. The learned D.R. Shri K. M. Dixit strongly opposed the request of the assessee for restoring the matter back to the Assessing Officer with the submissions that the Assessing Officer has worked out the unaccounted sales after verifying the material placed before him.
26. Having given a thoughtful consideration to the rival submissions and from a careful perusal of the record, we find from the assessment order that the assessee was engaged in the business of plastic woven bags, paper reinforced bags and jute bags. A search was conducted on 06/01/98 by the Central Excise authorities on assessee and they found 47 sale invoices pertaining to the period 21/09/95 to 28/05/96. On scrutiny of these sale invoices found from the assessee revealed that the assessee was selling considerable quantity of goods to M/s Sunil Kumar Pawan Kumar, Kanpur, M/s Sanjay Kumar, Kanpur and M/s Deepak Trading Co., New Delhi. Such invoices were termed by the Excise authorities as first set of invoices. Out of these invoices 40 invoices were pertaining to financial year 96-97 relevant to assessment year 97-98. A comparison of these invoices with those obtained by Central Excise authorities from IFFO, Phoolpur, IFFCO, Bareilly, Rallis India Ltd., Visakhapatnam and Indo Gulf Fertilizers, Jagdishpur (all are purchasers of the assessee's product) revealed that a large number of invoices contained the same SI. No. and dates as those of first set of invoices. These invoices obtained from such aforesaid parties, were termed as second set of invoices. It was noticed that the first set of invoices and its corresponding second set of invoices bearing same SI. No. and dates were issued for same description and quantity of goods and also contained same debit entry numbers of RG-22A Part-II/PLA, but the assessable value of the goods as declared in the first set of invoices were much lower than the assessable value of the goods as declared in the second set of invoices. Though the assessee was collecting Excise Duty from the aforesaid parties as per second set of invoices but it was not being paid to the Government. Another set of invoices for the same period was also found from the assessee which was named as third set of invoices by the Excise Authorities. Scrutiny of these invoices by the Excise Authorities and its comparison with the first set of invoices, revealed that these invoices, too, contained the same SI.No., date and same quantity of goods. The parties mentioned in the third set of invoices were same as those in the second set of invoices. However, the amount of Excise Duty and the debit entry number in the third set of invoices were same as those in the first set of invoices. For better understanding, an invoice bearing No. 5 is described below in all the three sets along with all the common factors.
Common Factor in all sets of Invoices
|Inv. No.||Inv. Date||PLA/RG-23 So. No.||PLA/RG-23 Date||Qty. in pieces||Transporter's name||G.R. No./ Truck No.|
As described in 1st set of invoices
|Name of the party||Invoice value||Assessable value||Duty shown||Trade Tax/ Freight|
|M/s Deepak Trading Company||1,42,219||1,11,000||27,750||3,469|
As described in 2nd set of invoices
|Name of the party||Invoice value||Assessable value||Duty shown||Trade Tax/ Freight|
|M/s IFFCO Phoolpur||6,78,045||5,26,808||1,31,702||19,535|
As described in 3 set of invoices
|Name of the party||Invoice value||Assessable value||Duty shown||Trade Tax/ Freight|
|M/s IFFCO Phoolpur||6,78,045||6,46,826||27,750||3,469|
27. The above tables give an example of how invoice number 5 has been described in three different ways. There are in all 47 such invoices, out of which 33 invoices pertain to assessment year 96-97 and 14 invoices pertain to assessment year 97-98. The assessee has disclosed sales pertaining to the second set of invoices in the form of third set of invoices, the invoice value of the second set and the third set being the same. With a combined analysis of the three sets of invoices, the Central Excise Authorities were of the opinion that the assessee has made under payment of duty as per first set of invoices and also indulged in clandestine removing of goods as per second set of invoices. Accordingly, the assessee was made liable to pay the Excise Duty amounting to Rs. 43,49,076/- being the difference of duty as per first set of invoices and second set of invoices and also duty of Rs. 55,02,414/- being duty not paid as per second set of invoices, thereby total duty of Rs. 98,51,490/- was made chargeable on the assessee. The duty of Rs. 98,51,490/- represented the entire duty pertaining to the assessment year 96-97. The assessee contended before the Central Excise authorities that it has only under paid the duty and the charge of clandestine removal of goods was denied by claiming that the sales as per first set of invoices were not genuine and was done only to under pay the Excise Duty. However, the assessee took up the matter before Customs & Central Excise Settlement Commission and offered to pay the sum of Rs. 98,51,490/- in the spirit of settlement for settling the issue once for all. The Settlement Commission vide order dated 09/09/2002 settled the entire issue for an amount of Rs. 98,51,490/- and granted immunity to the assessee from interest and penalty. The assessee deposited Rs. 50,00,000/- immediately after the search and the balance was paid later on.
28. The Assessing Officer instead of making an independent enquiry in order to work out the unaccounted sales has solely relied upon the order of the Settlement Commission before whom the assessee has agreed to pay a sum of Rs. 98,51,490/- whereas the Assessing Officer was required to make independent enquiry with regard to the different set of invoices found after obtaining the comments of the assessee. Since the Assessing Officer has made the additions without making independent enquiry in this regard, we are of the view that this issue requires fresh adjudication by the Assessing Officer. Though the Hon'ble High Court has remanded the matter to the Tribunal for adjudicating the appeal on merits, but in the absence of cogent material it has become practically impossible for the Tribunal to adjudicate the issue on merit as the enquiry on factual aspect is required to be conducted by the Assessing Officer. We, therefore, are of the view that in the interest of justice, a fair opportunity should be afforded to the assessee with regard to the evidence collected by customs authorities and after obtaining the comments of the assessee, the Assessing Officer may make independent enquiry for determining the unaccounted sales of the assessee. We also direct the assessee to extend all sort of cooperation and to produce all relevant evidence on which he intends to rely before the Assessing Officer so that he may conclude the enquiry within a short period. Since the matter is old, we direct the Assessing Officer to complete the assessment within a period of six months from the date of receipt of this order of the Tribunal.
In the result, the appeal of the assessee is allowed for statistical purposes.
Per Pramod Kumar :
1. I have carefully perused the draft order proposed by my learned brother. While I agree with the conclusions arrived at by my learned brother, I would like to add my reasons for supporting one aspect of the stand taken by him.
2. To take a call on which case to hear and which case to adjourn is prerogative of the senior member. In the Conventions to be followed by the Members of this Tribunal (http://lawmin.nic.in/RTI/Conventions.pdf), it is inter alia stated as follows:
Conduct of Court Proceedings
4. The Senior Member of each Bench shall be the Presiding Officer, and will conduct the proceedings.
The Senior Member will decide and pass order of formal requests which are discretionary such as adjournment adjustments, etc.
The Senior Member shall open and close a case.
3. While it is true that we do in the courtroom is judicial work, it does not mean that in carrying out this work, well settled judicial traditions, which have been developed over a very long period of time, can be ignored. The division bench members cannot decide an adjournment request by independent application of judicial mind as they apply in the cases of judicial matters, such as appeals and other connected or incidental matters. A judicial convention, as much as any other convention, is a set of agreed, stipulated, or generally accepted standards, norms, or criteria, often taking the form of a custom which in turn is a source of law. It is a convention, followed by all benches in all judicial forums where more than one judicial officer are on bench, that decision whether a particular case listed before the bench is to be heard or not is a decision to be taken by the senior most judicial officer on the bench. I, therefore, bow before the decision taken by my brother, that the adjournment request is to be rejected, and the matter is to be proceeded on merits. To the extent that the adjournment request is to be rejected, I cannot question what my brother decides and do not want to venture into that aspect either. The matter, however, does not stop there. Learned brother has made detailed judicial observations on the issues relating to adjournment, judicial proceedings and conduct of benches.
4. Lest I may be misunderstood and seemed to be getting into adjudication on the issue of whether or not adjournment should be granted, I must clarify that it is only because of these judicial observations made by the learned brother, and with the consent and encouragement of my learned brother to add my thoughts on the same, that I am writing this note.
5. I think it is appropriate to set out the developments leading to this adjournment in little more detail. It all started on 25th August 2012 when, in a particular bar association meeting, a resolution was passed, which, inter alia, noted that in view of improper and indifferent attitude of a Member, "resulting in awkward and undesirable situation, at times embarrassing and humiliating, the association hereby requests Hon'ble President of the Income Tax Appellate Tribunal for immediate transfer of ……, and till such time all appeals and connected matters be adjourned". On the very next working day, i.e. 27th August 2012, this resolution was handed over to the Senior Member at the station and was sent to Hon'ble President as well. On that very date, an advocate, who happens to President of this bar association, moved an adjournment petition in one of the cases on the board. As to what transpired thereafter is evident from the following note sheet entries:
Present : Shri ……………., Advocate, for the assessee
Present : Shri ……………., CIT(DR), for the revenue
The learned counsel for the assessee has moved an application for adjournment with the submission that …………..(name of the bar association expunged by us) has moved a representation to Hon'ble President of the ITAT, with a request to adjourn the matters/ appeals related to the Members of the Bar, till the decision on the representation is taken by the Hon'ble President. The CIT(DR) objected to the adjournments sought by the learned counsel for the assessee. Since the Bar has expressed their reservations against the present combination of the bench, the judicial propriety demands that we should not hear the matters being represented by the Members of the…………. We, therefore, adjourn the hearing to 1st October, 2012.
Per Accountant Member
It appears that some of the unscrupulous practiceoners before this Tribunal have joined hands in 'forum shopping'. The allegations stated in the application are motivated, false, frivolous and thus unacceptable. I, however, being the junior member on this bench, do not object to the discretion being used by the learned Senior Member in adjourning the hearing in such cases.
6. The functioning of the bench thus came to a virtual standstill. The matter, however, did not stop at that. Learned counsel appearing before us in this case, also filed a petition before the President, defending one of the Members on the bench and making serious allegations against the other Member. This bar association again wrote to Hon'ble President, vide letter dated 10th September 2012. This time not only one of the Members was attacked against, allegations were made against this particular counsel who tried to defend that Member and attack another Member on the bench, and this letter also justified superiority of this bar association over other associations at the station. There were thus communications for and against both the Members - one by this bar association and the other by another group of representatives.
7. Learned counsel appearing before us, and his associates, then sought adjournment on the ground that his petition against the conduct of another Member on the bench is pending before Hon'ble President. This time the bench, through its senior member, took cognizance of allegations made in the said letter and referred the matter to Hon'ble Chief Justice of Allahabad High Court for initiation of contempt proceedings. Hon'ble High Court has admitted the contempt petition and the case is now listed as State of Uttar Pradesh v S K Garg and another (Petition no. 310 of 2013) before Hon'ble Allahabad High Court at Lucknow benches.
8. Even though, for the reasons I will set out in a short while, it is not really relevant whether this particular bar association was justified in taking the stand that they did, it is important to take note of the fact that this bar association very candidly admitted, in the letter dated 10th September 2012, that the counsel before us "…. had spearheaded a campaign against the then learned Accountant Member ……… and had approached this very association (for supporting his fight against him. Being a fellow colleague, and despite the fact that he was not a Member of our association, our association took up his cause and stood by him." What is thus glaring is that the then office bearers of this bar association, even though the bar association, as a whole, did not perhaps entirely believe in the cause for campaign against a judicial officer, did espouse that cause and allowed its platform to be used for, what is now indicated by the them as, a malicious campaign by an individual lawyer.
9. This atmbodh and confession by this particular bar association comes a bit too late now. The judicial officer against whom this campaign was carried out, by the then office bearers of the bar association, has since retired. Either they are untruthful in this representation dated 10th September 2012, or they were untruthful in their representation against this former colleague, and either way it does not inspire any faith in their words today. As I say so, I am alive to the fact that when a reference is made to a bar association, it does not really mean anything against the bar association as a whole because, at the end of the day, it is run by only a few individuals and the decisions taken by the bar associations are sometimes decisions of that individual or group of individuals, who do not necessarily represent the will of all of its members.
10. 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. I am sure it could never have been intention of the Members to use these forums for proxy war against each other, and, having watched functioning of the bar associations for over two and a half decade, I am also certain that no bar association worth its name can ever use these methods- howsoever noble be their goals. My thirteen years of experience in this august institution have also absolutely convinced me that none of my colleagues can ever be involved in such proxy fights- whatever be the provocation. However, unfortunately this is the impression given in this case. Nothing can be farther from the truth. All this, however, leads to vitiation of atmosphere and creates a situation which is alien to healthy judicial traditions.
11. Coming to the question whether learned counsel's request for adjournment, on the primary ground that he has reservations on objectivity of this bench- particularly in view of the admitted position that he has leveled allegations against one us, should be accepted, I find it is a little unusual situation inasmuch as on somewhat materially identical facts, one of us has taken a view that 'judicial propriety' demands that the bench should not hear the cases of those who have petitioned Hon'ble President against one of us. However, as noted by this very combination of members in the case of ICICI Ltd. v DCIT (ITA No. 668/Lkw/2011; order dated 6th June 2013), consistency in judicial decisions cannot be at the cost of ignoring judicial precedents. That was a case in which in the immediately preceding year, the issue was decided against the assessee. However, when the same issue came up again in assessee's own case and we noticed that the earlier decision was contrary to the settled legal position, this bench disregarded the earlier decision, even though one of us was author of the said decision and even as it was an ex parte decision qua the assessee. In doing so, it was observed thus:
10. The matter thus stands restored to the file of the Assessing Officer for fresh adjudication in accordance with the law and in the light of our observations above. While doing so, the Assessing Officer will give a due and fair opportunity of hearing to the assessee and dispose of the matter by way of a speaking order. We direct so. As we do so, we are alive to the fact that this decision is at variance with decision in assessee's own case for the immediately preceding assessment year, but then, in the name of consistency, it cannot be open to us to perpetuate an error and act contrary to the law laid down by Hon'ble Supreme Court and by Hon'ble jurisdictional High Court - particularly now that we have taken note of these decisions. These decisions had escaped our attention earlier, no did the learned counsel for the assessee, who had appeared in that year, invite our attention to the same. We, therefore, have no hesitation in deviating from the stand taken in the immediately preceding year in assessee's own case .
12. Justice Cardozo, in his classic book 'The Nature Of Judicial Process', (first published by Yale University Press, United States, in December 1921; also available online at http://www.constitution.org/cmt/cardozo/jud_proc.htm) had said, "I own that it is a good deal of a mystery to me how judges, of all persons in the world, should put their faith in dicta. A brief experience on the bench was enough to reveal to me all sorts of cracks and crevices and loopholes in my own opinions when picked up a few months after delivery, and reread with due contrition. The persuasion that one's own infallibility is a myth leads by easy stages and with somewhat greater satisfaction to a refusal to ascribe infallibility to others." That is equally true for many of us too. There is no heroism in perpetuating an error. Once we realize that our earlier decision was incorrect, there cannot be any justification in continuing to adopt the same approach. The earlier decision, therefore, need not detain us from applying the correct law as it exists. What is thus really important is whether such an adjournment can be granted in accordance with the settled legal position. While I have to proceed on the basis that everyone is aware of the law so settled by Their Lordships of Hon'ble Supreme Court from time to time, I consider it appropriate to reproduce a rather lengthy, though wholly relevant, extract from Hon'ble Supreme Court in the case of Harish Uppal v Union of India [(2003) 2 SCC 45]. This is as follows:
15. In the case of U.P. Sales Tax Service Association v. Taxation Bar Association reported in  5 SCC 716, the question was whether the High Court could issue a writ or direction prohibiting a statutory authority from discharging quasi judicial functions i.e. direct the State Government to withdraw all powers from it and transfer all pending cases before the officer to any other officer and whether advocates would be justified to go on strike as a pressure group. In that context this Court observed as follows:
"11. It is fundamental that if rule of law is to have any meaning and content, the authority of the court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour, affection or ill-will. Casting defamatory aspersions upon the character, ability or integrity of the judge/judicial officer/authority undermines the dignity of the court/authority and tends to create distrust in the popular mind and impedes the confidence of the people in the courts/tribunals which is of prime importance to the litigants in the protection of their rights and liberties. The protection to the judges/judicial officer/authority is not personal but accorded to protect the institution of the judiciary from undermining the public confidence in the efficacy of judicial process. The protection, therefore, is for fearless curial process. Any scurrilous, offensive, intimidatory or malicious attack on the judicial officer/authority beyond condonable limits, amounts to scandalising the court/tribunal amenable to not only conviction for its contempt but also liable to libel or defamation and damages personally or group libel. Maintenance of dignity of the court/judicial officer or quasi- judicial authority is, therefore, one of the cardinal principles of rule of law embedded in judicial review. Any uncalled for statement or allegation against the judicial officer/statutory authorities, casting aspersions of court's integrity or corruption would justify initiation of appropriate action for scandalising the court or tribunal or vindication of authority or majesty of the court/tribunal. The accusation of the judicial officer or authority or arbitrary and corrupt conduct undermines their authority and rudely shakes them and the public confidence in proper dispensation of justice. It is of necessity to protect dignity or authority of the judicial officer to maintain the stream of justice pure and unobstructed. The judicial officer/authority needs protection personally. Therefore, making wild allegations of corruption against the presiding officer amounts to scandalising the court/statutory authority. Imputation of motives of corruption to the judicial officer/authority by any person or group of persons is a serious inroad into the efficacy of judicial process and threat to judicial independence and needs to be dealt with the strong arm of law."
16. It was held that the High Court did not have power to issue a writ of direction prohibiting a statutory authority from discharging quasi judicial functions. The question whether lawyers had a right to strike was not gone into.
17. In the case of B. L. Wadehra v. State (NCT of Delhi) & Ors. reported in AIR  Delhi 266, one of the questions was whether a direction should be issued to the lawyers to call off a strike. The Delhi High Court noted certain observations of this Court which are worth reproducing:
"In Indian Council of Legal Aid and Advice v. Bar Council of India reported in  1 SCC 732 : (AIR 1995 SC 691), the Supreme Court observed thus :
"It is generally believed that members of the legal profession have certain social obligations, e.g., to render "pro bono publico" service to the poor and the underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession."
In Re: Sanjeev Datta, reported in  3 SCC 619 : (1995 AIR SCW 2203) the Supreme Court has stated thus:
"20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practise it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible."
The Delhi High Court then considered various other authorities of this Court, including some set out above, and concluded as follows:
"30. In the light of the above-mentioned views expressed by the Supreme Court, lawyers have no right to strike i.e. to abstain from appearing in Court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers. In our view, in exercise of the right to protest, a lawyer may refuse to accept new engagements and may even refuse to appear in a case in which he had already been engaged, if he has been duly discharged from the case. But so long as a lawyer holds the vakalat for his client and has not been duly discharged, he has no right to abstain from appearing in Court even on the ground of a strike called by the Bar Association or any other body of lawyers. If he so abstains, he commits a professional misconduct, a breach of professional duty, a breach of contract and also a breach of trust and he will be liable to suffer all the consequences thereof. There is no fundamental right, either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case. On the other hand a litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in HussainaraKhatoon v. Home Secretary, State of Bihar,  1 SCC 81: (AIR 1979 SC 1360) is an integral and essential part of the fundamental right to life and liberty enshrined in article 21 of the Constitution. Strike by lawyers will infringe the above-mentioned fundamental right of the litigants and such infringement cannot be permitted. Assuming that the lawyers are trying to convey their feelings or sentiments and ideas through the strike in exercise of their fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. We are of the view that the exercise of the right under Article 19(1)(a) will come to an end when such exercise threatens to infringe the fundamental right of another. Such a limitation is inherent in the exercise of the right under Article 19(1)(a). Hence the lawyers cannot go on strike infringing the fundamental right of the litigants for speedy trial. The right to practise any profession or to carry on any occupation guaranteed by Article 19(1)(g) may include the right to discontinue such profession or occupation but it will not include any right to abstain from appearing in Court while holding a vakalat in the case. Similarly, the exercise of the right to protest by the lawyers cannot be allowed to infract the litigant's fundamental right for speedy trial or to interfere with the administration of justice. The lawyer has a duty and obligation to cooperate with the Court in the orderly and pure administration of justice. Members of the legal profession have certain social obligations also and the practice of law has a public utility flavour. According to the Bar Council of India Rules, 1975 "an Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate". It is below the dignity, honour and status of the members of the noble profession of law to organize and participate in strike. It is unprofessional and unethical to do so. In view of the nobility and tradition of the legal profession, the status of the lawyer as an officer of the court and the fiduciary character of the relationship between a lawyer and his client and since strike interferes with the administration of justice and infringes the fundamental right of litigants for speedy trial of their cases, strike by lawyers cannot be approved as an acceptable mode of protest, irrespective of the gravity of the provocation and the genuineness of the cause. Lawyers should adopt other modes of protest which will not interrupt or disrupt court proceedings or adversely affect the interest of the litigant. Thereby lawyers can also set an example to other sections of the society in the matter of protest and agitations.
31. Every Court has a solemn duty to proceed with the judicial business during Court hours and the Court is not obliged to adjourn a case because of a strike call. The Court is under an obligation to hear and decide cases brought before it and it cannot shirk that obligation on the ground that the advocates are on strike. If the counsel or/and the party does not appear, the necessary consequences contemplated in law should follow. The Court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike. Even in the Common Cause case the Supreme Court had asked the members of the legal profession to be alive to the possibility of Judges refusing adjournments merely on the ground of there being a strike call and insisting on proceeding with the cases. Strike infringes the litigant's fundamental right for speedy trial and the Court cannot remain a mute spectator or throw up its hands in helplessness on the face of such continued violation of the fundamental right.
32. Either in the name of a strike or otherwise, no lawyer has any right to obstruct or prevent another lawyer from discharging his professional duty of appearing in Court. If anyone does it, he commits a criminal offence and interferes with the administration of justice and commits contempt of Court and he is liable to be proceeded against on all these counts.
33. In the light of the above discussion we are of the view that the present strike by lawyers is illegal and unethical. Whatever might have been the compelling circumstances earlier, now there is absolutely no justification for the continuance of the strike in view of the appointment of the Commission of Inquiry and the directions being issued in this case."
18. In our view the conclusions reached are absolutely correct and the same need to be and are hereby approved.
19. Thereafter in the case of Roman Services Pvt. Ltd. v. Subhash Kapoor reported in  1 SCC 118, the question was whether a litigant should suffer a penalty because his advocate had boycotted the Court pursuant to a strike call made by the Association of which the advocate was a member. In answer to this question it has been held that when an advocate engaged by a party is on strike there is no obligation on the part of the Court to either wait or adjourn the case on that account. It was held that this Court has time and again set out that an advocate has no right to stall court proceedings on the ground that they have decided to go on a strike. In this case it was noted that in Mahabir Prasad's case (supra), it has been held that strikes and boycotts are illegal. That the lawyers and the Bar understood that they could not resort to strikes is clear from statement of Senior Counsel Shri. Krishnamani which this Court recorded. ……………
This Court thereafter directed the concerned advocate to pay the half the amount of the cost imposed on his client. The observations in this behalf are as follows:
"15. Therefore, we permit the appellant to realise half of the said amount of Rs. 5000 from the firm of advocates M/s B.C. Das Gupta & Co. or from any one of its partners. Initially we thought that the appellant could be permitted to realise the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them. Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self-imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability. But the advocate cannot get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair play and canons of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.
16. In all cases where the court is satisfied that the ex parte order (passed due to the absence of the advocate pursuant to any strike call) could be set aside on terms, the court can as well permit the party to realise the costs from the advocate concerned without driving such party to initiate another legal action against the advocate.
17. We may also observe that it is open to the court as an alternative course to permit the party (while setting aside the ex parte order or decree earlier passed in his favour) to realise the cost fixed by the court for the purpose, from the counsel of the other party whose absence caused the passing of such ex parte order, if the court is satisfied that such absence was due to that counsel boycotting the court or participating in a strike." (emphasis supplied)
20. Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh's case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services' case, that the Advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.
(Emphasis by underlining supplied by us)
13. The views so expressed by the constitution bench were again reiterated by Their Lordships in the case of Common Cause v. Union of India [(2006) 9 SCC 295].
14. It is, therefore, not open to even any bar association or other interest groups also, much less an individual lawyer or group of representatives - as is the case before us, to hold functioning of this Tribunal to ransom by seeking adjournments on the ground that they have some issues, howsoever legitimate as they might think these issues are, against a particular judicial officer. That is de facto boycott of a judicial officer and a strike against the judicial office he holds. As a matter of fact, as Hon'ble Supreme Court has observed, such boycotts or strikes are nothing but a contempt of court and a court itself also should not become privy to this by "adjourning the case on the ground that lawyers are on strike". When a functionary of this Tribunal, in exercise of his howsoever legitimate rights and for howsoever well intentioned purpose, consciously facilitates court functioning being brought to halt, it would appear to us, that he also becomes privy to these unconstitutional and illegal manoeuvrings by the vested interests, and he runs the risk of being held as much guilty of contempt of court as much as the persons who initiate these evil manoeuvrings. While there should indeed be swift, proper and transparent administrative action dealing with allegation against a judiciary functionary, though naturally after providing him an opportunity of giving his version on the allegations, there cannot be any room for judicial officers being intimidated by anyone or for anyone consciously in the hands of the pressure groups engaged in an unlawful and unconstitutional activity. Of course, nothing prevents a judicial officer to seek a transfer from a place where he is uncomfortable with such allegations, if his conscious so permits, or from a judicial officer being transferred bonafide in public interest from such a place, if it can stand scrutiny of law, but any attempts to disturb or interfere with his judicial functioning as long as he continues to hold the officer are impermissible under the scheme of the law as visualized by Hon'ble Courts above. The decisions to take whether or not a judicial officer should hear a particular case or not is to be taken by the judicial officer or by the well settled administrative guidelines and judicial traditions. Just because, for whatever reasons, a crisis situation has been deprived of an appropriate solution, no direct or indirect interference in judicial powers of a judicial officer can be justified. No short cuts are permissible for anyone - shorts cuts such as adjourning the cases on the board or causing adjournment of such cases, or short cuts resulting in compromising with independence and dignity of a judicial officer.
15. Lawmakers, as also Hon'ble Courts above, are very well aware that the threat to the independent and fearless functioning of the judicial institutions is not only from outside but also from within, and that is what Hon'ble Supreme Court has also referred to when Their Lordships quoted, with approval, observed of Hon'ble Delhi High Court to the effect that, "(t)he Court should not become privy to the strike by adjourning the case on the ground that lawyers are on strike." This observation is as much applicable in the cases of protest by an individual lawyer as much as it is applicable on the groups of lawyers and representatives or even bar associations. The legislation providing protection against contempt of courts extends not only to the persons appearing before the courts but also to the persons manning these courts, and, by implication, everyone associated with functioning of courts.
16. Granting adjournment in such cases of manoeuvrings by the interest groups, or otherwise becoming party to bringing functioning of a court to halt by joining such forces, could land us in the dock, and we must, therefore, desist from the same. Section 16 (1) of the Contempt of Courts Act, 1971, provides that "subject to the provisions of any law for the time being in force, a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly". Section 16(2), however, craves out an exception to the limited extent that nothing in Section 16 "shall apply to any observations or remarks made by a judge, magistrate or other person acting judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgment of the subordinate court". Section 16(2) thus excludes only such observations or remarks made by a judicial officer as he makes in the course of his judicial functions and regarding a subordinate court in an appeal or revision pending before him. In other words, everything that a judicial officer does on the bench, except for his observations or comments regarding the orders impugned in appeals or revisions before such judicial officer, is required to be kept within the framework of accepted judicial norms, and so as it does not (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, (ii) prejudices, or interferes or tends to interfere with the due course of any judicial proceeding , (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. That is also the underlying principle for the respectful treatment to orders passed by the co-ordinate benches, and other judicial forums, and that, even when a coordinate bench does not agree with another coordinate bench, it does not use any words which may be seen as offending the judicial dignity. It is a well-accepted judicial convention to do so, and it is this convention perhaps, which is the source and inspiration of the statutory provision also. Hon'ble Courts have not been found wanting in punishing judicial officers for their contempt of court, and there are at least three such reported judicial precedents from Hon'ble High Courts and Hon'ble Supreme Court. It is, therefore, free from any doubt or any controversy that a judicial officer has a duty, much more than anyone else, to protect the dignity of the court, and that, all his actions, except for his comments and observations on the orders impugned in appeals or revisions before his court, must stand the scrutiny of tough tests as prescribed, in the law protecting contempt of courts, for everyone else. On a conceptual note, the responsibilities of judicial officers in this respect are much more demanding that the duties of the parties appearing before the Courts and Tribunals or the public at large.
17. What could attract the stringent provisions for contempt of court is defined in an inclusive manner and it is open ended inasmuch as Section 2(c) of the Contempt of Court Act 1971 defines criminal contempt as "publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- (i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, (ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding , (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner".
(emphasis by underlining supplied by me).
These statutory provisions, though sparingly used as an exception rather than as a rule, are not merely of ornamental value. I would hold the view that 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. However, 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. When left with no other dignified choice, and howsoever reluctantly, sometimes these legal provisions are to be necessarily invoked. These statutory provisions are the weapons with which some public spirited stalwarts from legal profession, as also one of the most righteous person ever to grace the office of the President of this Tribunal, i.e. late Hon'ble Shri T V Rajgopala Rao, have fought legal battles to protect dignity of this institution at a time when even the most gracious conduct of one of our own former colleague, another outstanding legal luminary who later adorned the office of the President of this Tribunal and then elevated to Hon'ble High Court, was called into question. In the case of Income Tax Appellate Tribunal v V K Agarwal & Another [(1999) 1 SCC 16], Hon'ble Supreme Court did not condone what was ostensibly an administrative exercise of investigating a complaint by the then Law Secretary but was found to be "deliberate attempt on his part to question the judicial functioning of the Tribunal". Their Lordships condemned this attack on a judicial institution and, holding him guilty of criminal contempt of court within meanings of Section 2 (c), observed as follows:
…………Certainly, the language of the letter of 30th of December, 1997 is wholly unwarranted. Curiously, the statement in the letter that, the aforesaid circumstances disclose judicial impropriety of highest degree is reminiscent of the language used in the pseudonymous complaint. Instead of even waiting for an explanation, he has straightway asked the President to enquire into the matter and send a report to the Government, and that too peremptorily within ten days. All this is wholly unbecoming of a person holding the rank of the Law Secretary. …………... The entire tone of the letter is highly unwarranted, offensive and tends to undermine the dignity of the post of the President of the Appellate Tribunal. It is unbecoming of the Law Secretary to issue such "commands" to the President of the Income Tax Appellate Tribunal ordering him to send reports within a few days and threatening that adverse inferences would be drawn if the report is not so sent - and all this without even bothering to check whether the complaint received by him was a genuine complaint or not!
The first respondent, although he received the pseudonymous complaint of 15th of November, 1997, seems to have written a letter to the so-called sender of the complaint only on 12th of January, 1998, and that too asking only for a confirmation whether the complaint was made by that person. When he wrote the letter of 30th December, 1997, he had not even checked the veracity of the complaint. Thereafter, although the first respondent had not received any response to his letter of 12th of January, 1993, he did not hesitate to address the letter of 3rd of February, 1998 to the President of the Tribunal.
In our view this kind of conduct and that, too on the part of the Law Secretary, who is expected to maintain the Independence of the Income Tax Appellate Tribunal and not interfere with its judicial functioning, amounts to gross contempt of court. It is a deliberate attempt on his part to question the judicial functioning of the Tribunal coming as it does from a person of his rank. It is rightly perceived by the President as well as the two concerned Members of the Tribunal as a threat to their independent functioning in the course of deciding appeals coming up before them.
The first respondent has offered his apology to us. However, looking to all the circumstances of the present case we cannot accept the apology offered. He has travelled far beyond exercising administrative control over the Tribunal. He has tried to influence or question the decision-making process of the Tribunal. An apology, in these circumstances, cannot be accepted. We, therefore, hold the first respondent guilty of contempt of court.
18. The legal position is thus very clear and unambiguous. Anything which "interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner" is a contempt of court. As a corollary to this position and in the light of the law laid down by Their Lordship in Harish Uppal's case (supra), when even judicial or other officers allow such attacks on judicial offices going on unhindered, they also run the risk of becoming privy to the contempt of court. The functioning of this Tribunal obviously cannot go on when a lawyer, or a group of lawyers, seeks an adjournment on the ground that objectivity of the judicial officer is not beyond doubt and that there is a petition to that effect is pending before higher authorities. No judicial institution can be allowed to function if these reasons are treated as good enough to grant adjournments. Of course, larger public cause requires that these grievance petitions against judicial officers are appropriately dealt with and the matter is looked into in a fair, transparent and objective manner, but that is beside the point right now. That is something over which the judicial officer concerned will have no control. We are, and can only be, concerned with whether adjournment of a case can be granted only because the counsel representing an assessee, or even a body representing such a counsel, have a right to get adjournment when they have issues with any judicial officer forming part of the judicial forum. I would, in the light of the above discussions, hold the view that the adjournment requests, no matter howsoever legitimate and bonafide these requests may be claimed by the adjournment seekers, should be considered in the light of all the relevant factors, including larger interests of the society and the judicial decorum. Of course, the approach has to be uniform and approach has to be consistent. The majesty of law is that no matter how powerful and how mighty these persons may be, no person, in the eyes of a judicial forum, is above the law. If the law is to be followed consistently, as all of us are under obligation to follow, the adjournment requests received on account of a representative or a bar association's decision to boycott a bench, or request received from such sources to render judicial powers of a judicial officer redundant because he does not suit their interests should also be rejected with as much of a conviction as the conviction with which this adjournment petition is rejected. In my considered view, above all, it will go a long way in ensuring that the Members are allowed to work fearlessly, without any pressure and without bothering about level of popularity amongst the interest groups protecting interests of one set of parties, out of the two sets of parties appearing before this forum. I agree with my brother that this adjournment petition should be rejected and I also agree with him that no bullying tactics, either by an individual counsel or by a group representing any interests of any of the groups, should be allowed to interfere in the functioning of this judicial institution. There cannot be a bigger threat to the judicial system than judicial officers under pressure or judicial officers playing to the galleries- which invariably also include, no matter in which measure, narrow and vested interests as well. It is all the more important in the bar associations dealing with tax matters where they only represents of taxpayers and, sometimes in deviations with the healthy traditions developed by founding fathers and stalwarts of these bar associations, happily work against even the bonafide interests of the State - always the other party to every dispute before the Tribunal. 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 Palkivala, 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. Neither we can forget these contributions to laudable causes nor can we treat the entire bar associations, interest groups or professionals as dominated by of such public spirited characters. There are good people and there are not so good people everywhere and in all walks of life, and no part of this society is an exception - people on this side of the fence or people on the other side of the fence. None can proceed on the sweeping generalizations about any profession or any vocation. It will, therefore, be too divorced from the ground reality to proceed on the basis that all the lawyers, chartered accountants or groups representing their interests, are always righteous and ethical, and that all the things they are uncomfortable with are inappropriate and illegal. We can neither be so naïve nor so unrealistic. Gresham's law, we like it or not, has extended to many areas in life.
19. A judicial officer, when performing judicial duties, is not performing in a swaymvar; he is discharging solemn duties of rendering, impartially and fearlessly, justice pure and simple. I do not think representatives of taxpayers can be allowed to choose the judicial officers for adjudicating upon their grievances. A judicial officer need not bother about how representatives of the taxpayers will react to his judgments, or how will even his own colleague on multi member bench view his approach to the judicial work. There should be harmony in functioning but not at the cost of independence. There should be healthy respect for each other but not at the cost of betraying one's own conscious and commitment to the time-tested values. There should be brotherhood amongst all but not at the cost of damage to the public good. The working of this Tribunal, as indeed all our judicial institutions, in my humble understanding, is an outstanding example of how this can successfully be achieved, and as to how a judicial officer's answerability continues to be only to his conscious and to the majesty of law.
20. As long as a judicial officer comes with clean hands and open mind, he believes in what he is doing, and he is following the dictates of his conscious, his understanding of the words of law and, to the best of his ability, high standards of judicial traditions, he has to bother about nothing else. That is the freedom granted by the judicial independence in our country which has stood the test of time and promoted an independent, impartial and efficient judiciary. When allegations hurled at one of us are treated, by itself, as reason enough to adjourn the matters of the persons making these allegations, the persons making allegations are virtually allowed to decide that their matters should not be heard by a particular bench and to thereby demoralize judicial officers manning a judicial forum. I only hope that it was an inadvertent by-product of a momentary rush of blood which has resulted in the contemptuous action of the learned counsel, and that it must have been only because he could not find his way out of this cul-de-sac, without endangering his defence before the Hon'ble Courts above, that he has not apologized so far, but there has to be a visible sign of remorse, apology and regret in his conduct. I hope he expresses his remorse, apology or regret, if he really has that, sooner rather than later and I am sure that my brother will show his generosity by allowing the matter to come a decent close. There cannot be any room for bitterness forever, nor can any stage of life be too late a stage to change oneself. With the benefit of hindsight though, I would think that, in this sequence of events, only if the very first attempt to commit contempt of this Tribunal, by virtually boycotting court of a brother judicial officer, was thwarted with the same conviction and same force as it has been thwarted this time, this situation would not have arisen. While one has also to be alive to the fact even the bar associations or individuals resort to such confrontations generally, though not always, in a situation when softer options do not beget them fair solutions, but when call of duty requires us to be firm, we have to, howsoever reluctantly, take these tough decisions. I envy and admire my learned brother for the exemplary restraint he had shown in not initiating legal action at the first sign of trouble but these goodwill gestures did not get the results he would have aspired. The restraint at that point of time must have been bonafide and certainly befitting the conduct of a seasoned judicial officer, but since, as I said earlier, sometimes politeness is taken as weakness and restraint is taken as timidity, these goodwill gestures sometimes turn out to be counterproductive. We have learnt this lesson the hard way. The fact that a graceful solution to a crisis, for whatever reasons and for howsoever legitimate reasons, has proved to be elusive so far, does not mean that dignity of a judicial office is to be put on the altar. That will be destructive of the ideals an independent judiciary stands for. Let us not destroy, or become privy to destroying, this priceless heritage in our judicial independence, or allow anything to come in the way of the high traditions of our judiciary, and the sense of belongingness for all the stakeholders in this institution.
21. With these words, I concur with the conclusions arrived at by my learned brother. As my learned senior has stated in his signed order, the decision on this appeal was pronounced in the open court immediately upon conclusion of hearing.
Assessment --Scrutiny assessment--Appellate order--Must be given complete effect--Assessee filing return and declaring certain income--Appellate order deleting several disallowances--Assessment at a figure lower than returned income--No need to restrict to returned income--Income-tax Act, 1961-- CIT v . Milton Laminates Ltd .
(Guj) . . . 58
(Guj) . . . 58