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The views expressed herein are personal to the writer and do not necessarily represent the views of the Bar Association.

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The author, an eminent senior advocate, is a long-time crusader for reforms in the field of taxation. He believes that the change in regime is an opportune time to address the evils plaguing the tax administration. He has addressed an open letter to the Hon’ble Prime Minister in which he has systematically set out all the core issues that require to be addressed. He has also prepared a detailed discussion paper which sets out the solution to several issues. He urges all stake-holders to vigorously support the process of reforms and to make their voice heard

 

Shri. Narendra Modi, Hon’ble Prime Minister of India,

 

We, the All India Federation of Tax Practitioners an Apex Body of tax practitioners of India, heartily congratulate you on being elected as the Prime Minister of India. Indeed it was a great revolution through democratic process.

 

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The author, an eminent senior advocate, expresses gratitude at the proactive role played by Courts in seeking to redress the inefficiencies of the department. However, while the strictures do shake the department out of its’ reverie for some time, the effect does not last long. The author suggests that a monitoring mechanism should be set up and the top brass of the department hauled up for non-compliance of the directives. The author has also identified the problem areas and suggested simple and cost-effective solutions to prevent the department from being on the wrong side of the law

 

As on 15-2-2014, the pendency of appeals and references before the Bombay High Court was more than 9,700, which includes 1,850 old references, 4,700 appeals admitted and pending for final hearing and 3,150 pending for admission. The Income-tax Appellate Tribunal Bar Association has made a representation to the Hon’ble Chief Justice of the Bombay High Court to constitute at least two tax Benches. We wish to express our gratitude to the Hon’ble Chief Justice for being kind enough to accept the request and constituted three tax Benches.

 

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The author bemoans the myopic attitude of the Government that even though hundreds of crores of revenue is locked up in litigation pending before the Tribunal, a few crores is not being spared for the day-to-day effective functioning of the Tribunal. Even strictures by the High Court in similar matters is not having any effect on the Government’s attitude rues the author. He pleads again with the powers that be to wake up and smell the coffee before it is too late to save the Tribunal

 

The Income tax–Appellate Tribunal (ITAT) which was established in the year 1941 is considered as mother Tribunal of all other tribunals. Regrettably, it has been ignored by the Government due to the frequent change at the helm of the Law Ministry in the last four years. Hence, the Ministry could not devote the deserved time on issues pertaining to the better administration of the ITAT. The ITAT, which is the final fact finding authority, requires urgent attention and support of the Government for its continued excellence in administering justice. I have made an attempt to highlight some of the important issues which require immediate attention.

 

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Amidst the grim news that some lawyers are indulging in “cut throat competition” and fee “under-cutting“, one renowned firm of international tax laws experts has sent the stern reminder that this is not professional behavior and gone the other way by indulging in “happiness billing

 

Lawyers are alleged to be indulging in “cut-throat competition” and “under-cutting” of fees. However, one legal firm has bucked the trend by indulging in “happiness billing

 

Lawyers and Chartered Accountants are a part of the noble profession where you render services without an eye on the fees. Also, the fees that you charge are based objectively on your level of skill and standing in the profession and are uninfluenced by the economics of demand and supply.

 

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The Income Tax Appellate Tribunal, like any judicial body, has a number of procedural requirements that require to be complied with before an appeal can be heard. Unfortunately, several authorized representatives, though highly qualified CAs and Advocates, neglect to comply with the requirements with the result that their matters get adjourned and they waste their own time and that of the Bench and their clients incur unnecessary costs. To assist the Tribunal and the taxpayers in the cause of justice, the author, an eminent advocate, has prepared a comprehensive check-list of matters that need to be complied with. The author assures all taxpayers that if the check-list is religiously followed, they will have a smooth and pleasant experience before the Tribunal

 

The Income–tax Appellate Tribunal-Final fact finding authority—Members of the Bar and Bench are trustees-The onus is on them to preserve its dignity, sanctity and purity.

 

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The author, an eminent advocate, voices his exasperation at the continued indifference of the Government towards the well-being of the Tribunal. Though 3 long years have passed, the Government has not bothered to even appoint a full-time President for the Tribunal. The author warns the Government that patience amongst the stake-holders is running thin and that the Bar will, if driven to it, have no option but to seek relief from the High Court. He cautions that if this happens, the Government will face acute embarrassment and urges the Government to get its act together to ensure that such an eventuality does not happen

 

As per the amended provision with effect from 1-6-2013,

 

“The Central Government shall appoint –

 

(a) a person who is a sitting or retired Judge of a High Court and who has completed not less than seven years of service as a Judge in a High Court; or

 

(b) the Senior Vice-President or one of the Vice-President of the Appellate Tribunal,
to be the President thereof.”

 

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The author, an eminent advocate, who is at the forefront of the crusade to resolve the core problems faced by the Tribunal, sees a ray of hope that the attitude of utter indifference shown so far by the Government towards the welfare of the Tribunal will change after the appointment of Shri. Kapil Sibal as the Law Minister. The author makes a fervent request to the Hon’ble Law Minster that he should spare time to immediately address those problems

 

Those who practice before the Income –tax Appellate Tribunal (the “ITAT”), are well aware that in the year 1996, the then Law Secretary issued a notification stating that the Ministry of Law has the power to transfer the Hon’ble Members of the ITAT. The said notification was challenged by the ITAT Bar Association, Mumbai, and the then President of the ITAT was made respondent to support the petition. The Hon’ble Bombay High Court stayed the operation of the said notification (Income-tax Appellate Tribunal Bar Association of India v. UOI, W.P. NO. 2350 of 1996 dt. 6-3-1997) (Income-tax Review, April 1997, P. 1 to 3).

 

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The author, an eminent advocate, is unable to hide his frustration at the continued indifference of the Government towards the welfare of the Income Tax Appellate Tribunal. Though three long years have passed and three Law Ministers have come and gone, nobody has bothered to address the core problems being faced by the Mother Tribunal. The author again lists out the core issues and urges the Government to shed its apathy, get its act together and act speedily to save this majestic judicial Institution from decay

 

The Income -tax Appellate Tribunal, which has completed 72 years of existence, is considered as one of the finest institutions of our Country. The former President Shri Vimal Gandhi retired on 3-6-2010, however, till date, no permanent President is appointed, Senior-Vice President / Vice-President is acting as Officiating President. It is for the first time that for more than two years and ten months Vice-President has been functioning as an Officiating President. By not appointing the President, Senior Vice President and Vice Presidents, the Government is sending a wrong message that, we have no members who deserve to be appointed to lead the institution. If that is so, how the citizens will have confidence in the Institution.

 

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What was in the realm of fantasy till yesterday in now in the realm of reality, thanks to technological advancements. The author, a crusader for making legal justice affordable to the common man, argues that if setting up Benches of the Supreme Court in various cities is not possible then an alternative viable solution is for the Supreme Court to hear out-station matters by video-conferencing for the benefit of the common man. The pioneering steps taken in this regard by the Tribunal show that the concept is practical, feasible and cost-effective says the author

 

All India Federation of Tax Practioners have made a representation to Government of India from time to time to constitute four Benches of Apex court in different regions. The Bar Council of Maharashtra & Goa vide letter dated 11/4/2000 also endorsed the view of the Federation. However, full Bench of the Apex Court was not in favor of having the Benches of Supreme Court in different regions. It seems the Government may not initiate the proposal to constitute Benches of Supreme Court in four regions. At present common man of our country cannot think of approaching the Apex Court for justice it is beyond his reach. Shri Ashok H. Desai, Sr. Advocate and Former Attorney General of India in his speech stated that every adjournment in Supreme Court costs the client minimum of about Rs.1 lakh. If this is the minimum cost for an adjournment, one can imagine how expensive it would be for citizens to approach the Supreme Court for justice.

 

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There have been a number of landmark judgements in the year 2012 and making a short-list of just 10 of them is not an easy task. Yet, the author, thanks to his experience and expertise, achieves this task. Of course, he can’t resist the temptation to make a “honourable mention” of several other important judgements. See, if you agree with his choice of the top-10 and his analysis of the judgements

 

1. Vodafone International Holdings B.V. vs. UOI (Supreme Court)

 

(Please, can we now end this soap opera)

 

Vodafone enjoys the pride of place as the numero uno landmark judgement of the year though it has now, despite its path-breaking and revolutionary stance over tax-planning and substance vs. form, attained the dubious status of a never ending soap opera.

 

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