On the occasion of the “Foundation Day” of the Tribunal, the author ponders over what can be done to improve the functioning of the Tribunal. Using his vast experience, he makes a check-list of the known problem areas which invariably result in adjournments & delays. The author implores professionals to be proactive in ensuring that speedy justice is delivered to the assessees. The author also gently reminds the Hon’ble Members of the immense power vested in them to do justice to the parties
The 25th January, 2012 will be the foundation day of the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal which was established on 25th January, 1941 will be completing the 71st year. When we enter 72nd year it is the time to look back and learn which are the areas which requires to be debated and implemented for better administration of justice, so that this mother Institution retain its glory as one of the finest institution of country. In the year 1988-89, the pendency before the Appellate Tribunal was 3,00,597 cases where as on 1-1-2012 the pendency before the Appellate Tribunal is only 60,241, out of which 18,193 appeals are pending before the Income-tax Appellate Tribunal Mumbai. (Refer page56) One must give deserved credit to the institution for making all efforts to reduce the pendency of cases. This is the only institution where the pendency has reduced where as all other courts and institutions the pendency of cases have been increasing every year. For better administration of justice delivery system before the Appellate Tribunal we make an appeal to professionals to consider the following check lists, which will help the Appellate Tribunal to deliver speedy justice:-
Each adjournment costs the nation and it has to be paid from the tax collected from the citizens, by following the rules and procedure and by minimizing the adjournments, we will be helping the process of nation building in a small way, let us make an honest beginning
(1) Grounds of appeal : As per Rule 8 of the Income-tax (Appellate Tribunal) Rules, 1963, every memorandum of appeal shall set forth, concisely and under distinct heads, the grounds appeal without any argument or narrative, and such grounds shall be numbered consecutively. However, many times it has been observed that the grounds are argumentative, referring case laws. This trend is observed even in departmental appeal also. Professionals are advised to prepare the grounds as per Rule 8. In cases where the appeals are already filed the representatives of the assessee are requested to file the revised grounds, this will save the precious time of the Court and will avoid unnecessary adjournments.
(2) Signing of appeal memo and grounds of appeal : As per Rule 47 read with Rule 46 of Income-tax Rules, 1962 the appeal memo and grounds of appeal has to be signed by the person who is competent to sign the return as provided in section 140. i.e. the Managing Director, Managing Partner, Karta of HUF, etc. In case if there is no Managing Director or Managing Partner the same may be stated in a covering letter stating that as there is no managing director or partner the same is signed by the director or partner. However, in practice it is observed that the mandate of the sections are not followed, hence, the matters are adjourned from time to time. It is desired that the Rule may be followed and wherever appeals are filed without following the mandate of section and rules the professional are advised to file the revised form and grounds of appeal.
(3) Application for condonation of delay : Many a times the application for condonation of delay was not filed along with the appeal. If it is filed along with appeal with proper affidavit, the same will avoid the unnecessary adjournment.
(4) Paper book. As per rule 18 of the Income-tax (Appellate Tribunal) Rules, 1963, the paper book must be filed at least a week before the date of hearing. Each paper must be initialed and proper certificate requires to be furnished. Paper book must be serially numbered. Filing of paper book is not a simple formality it has to be authenticated. If some of the documents are in regional language it has to be translated in to English.
Members of the Appellate Tribunal also have the greater responsibility, in deciding appeals, they are not merely adjudicating on the issues, before them but they are in variably deciding on the fortunes of the assesses. Where as one wrong decision against an assessee may ruin his life and relegate him to the position of a pauper. On the other hand, if the decision is against the Government, it may affect the coffers of the Government to an extent of a drop in an ocean. Hon’ble Members also have a greater responsibility to the citizens of this country, because their decision also became a precedent to follow in other cases
(5) Additional evidence- As per Rule 29, of the Income-tax (Appellate Tribunal) Rules, 1963, the parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, without the permission of Court. When ever additional evidences are produced it has to be accompanied with application for production of additional evidence stating the reasons for not producing the said evidences before the lower authorities. If desired it may have to be supported with affidavit.
(6) Bringing the legal heirs on record : It is duty of the assessee to bring to the notice of the Tribunal to bring legal heirs on record by filing the affidavit and necessary documents. It may be desirable to file the revised form of appeal by bringing the legal heir. This will help the institution and unnecessary adjournments can be avoided.
(7) Authority letter and adjournments : Only the authorized representative as per section 288 of the Income-tax Act, 1961 is competent to appear before the Tribunal with proper authorization which is affixed by prescribed stamp. Many times the adjournments applications are filed by the professionals without filing proper authorization. It has been observed that many of the assessees send the clerk or jamadar to take adjournments. W e must bear in mind that the Tribunal is a Court and we cannot send the clerk to take an adjournment. It will be disrespect to the Institution. It is desired that only the persons competent to appear before the Tribunal may be sent even for an adjournment, with proper authorization. An authorized representative who appears before the Tribunal has to follow the Dress regulations as per Rule 17A of the Income-tax (Appellate Tribunal) Rules, 1963.
(8) Clubbing of appeals : When the same year appeal of department and assessee is pending it is the duty of the assessee to inform the registry to fix the appeals together. If the application is made in advance it will help the Tribunal and unnecessary adjournments can be avoided. In cases where earlier years appeals are pending if the issues are common it may be desirable that earlier appeal may be taken up first and latter years will follow. In case the latter years appeals are fixed and earlier years are not fixed for hearing letter may be filed to the Registry to fix the hearing of earlier years along with other appeals.
(9) Change of address or name : Whenever change in address, or change in name, whether it is assessee’s appeal or department the same may be informed to the Registry by filing an application or if it is of the appeal of assessee it may be desirable to file the letter with revised form. This will avoid the ex-parte decision of appeal and unnecessary adjournments.
(10) Figures in million : Most of us have studied in India, while writing the date we follow the pattern of , day/month/year and the numbers in thousands, lakh, crores and not in millions, by putting the comas in appropriate places will help the courts and Income-Tax Appellate Tribunal to understand the figures in a better way.
(11) Citations : Whenever the case laws are cited before the Bench it is always desirable to keep the citation and refer the case laws. If we are referring the case laws reported in reporters other than ITR and ITD we have to file the copies as the members may not have the facility of accessing of case laws reported in other journals.
Each adjournment costs the nation and it has to be paid from the tax collected from the citizens, by following the rules and procedure and by minimizing the adjournments, we will be helping the process of nation building in a small way, let us make an honest beginning.
We should bear in mind that the Income -tax Appellate Tribunal is the final fact finding authority. Assessee can file an appeal under section 260A only on substantial question of law. Therefore, professionals who represent the matters before the Appellate Tribunal has to put forward all the facts so that the Appellate Tribunal will be in a position to decide the issue in a very judicious way.
Members of the Appellate Tribunal also have the greater responsibility, in deciding appeals, they are not merely adjudicating on the issues, before them but they are in variably deciding on the fortunes of the assesses. Where as one wrong decision against an assessee may ruin his life and relegate him to the position of a pauper. On the other hand, if the decision is against the Government, it may affect the coffers of the Government to an extent of a drop in an ocean. Honourable Members also have a greater responsibility to the citizens of this country, because their decision also became a precedent to follow in other cases.
Hon’ble President of the Income-tax Appellate Tribunal Mr. G. E. Veerabadrappa, is making all his sincere efforts to maintain the institution as one of the finest institution of our country. He desires to have objective suggestions from all stake holders before the Income-tax Appellate Tribunal let us make an humble beginning with in our ability and capacity. Readers may send their suggestions to the All India Federation of Tax Practitioners (E-mail: firstname.lastname@example.org) or Income -tax Appellate Tribunal Bar Association (E-mail: email@example.com).
The role of the Bar in the administration of justice is no less than that of the Bench. It has been therefore, rightly said that only a good Bar makes for a good Bench. We have a great responsibility, let us work together hand in hand and see that the Tribunal should retain its glory as one of the finest institution of our country and a model for other institutions to follow.
We wish all good luck to the Income-tax Appellate Tribunal for rendering a quick efficient and speedy justice to the tax payers as done for 71 years, we hope all the stake holders who are concerned with Income-tax Appellate Tribunal will make their sincere efforts to maintain its purity, qualitative justice delivery system and achieve its motto of “Sulab Nyay and Satvar Nyay”.
Reproduced with permission from the AIFTP Journal, January 2012