The author warns of a serious conflict of interest in permitting serving Commissioner (Appeals) to argue appeals on behalf of the Department before the ITAT. He argues that no person can be a judge and a lawyer at the same time.
The Hon’ble Apex Court in Anil Rai vs. State of Bihar (2001) 7 SCC 318 has observed that justice should not only be done, but also should appear to have been done.
It has been observed that in Income Tax Appellate Tribunal, Mumbai, very often the Commissioner of Income Tax (Appeals) who has to adjudicate the appeals filed against the order passed by the Assessing Officer has been deputed to argue the matters before the Appellate Tribunal. It means in the morning he has to defend an issue on behalf of the department and afternoon when he functions as an appellate authority, he has to decide the same issue as an independent quasi-judicial authority. Can he do justice to the assessee as an independent quasi-judicial authority? By deputing the quasi-judicial authority to represent the matters before the Income Tax Appellate Tribunal the purpose of appointing the quasi judicial authority has been lost, howso ever impartial he may be. His function as a departmental representative has grave impact on his judicial function as an appellate authority. It may also be appreciated that when an officer represent the matter before the Income Tax Appellate Tribunal he has to defend the matter on behalf of the department, he has no authority to concede though personally he may of the opinion that the department has no case. Whereas when a lawyer represents the matter he has to assist the Court to arrive at a correct decision and he may withdraw certain grounds whereas such a power is not with the officers of the tax department when they represent the matter before the Income Tax Appellate Tribunal.