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The Tribunal is the final fact finding authority and if it wrongly decides the
matter the assessee is virtually left with no remedy. An appeal to High Court
can be only on substantial question of law. Litigants before the Tribunal are
of two categories, the aggrieved assessee and the Government. But the
objective of filing appeal is different for both categories. An assessee rings
the bell of justice before the Tribunal, only when the Assessing Officer makes
additions which are not in accordance with law or facts. Appeals before the
Tribunal involve, time and money, both of which he can ill afford to squander.
Before doing so he makes a careful cost benefit analysis and elects to appeal
only when the stakes are high and there is reasonable chance of success.
Assessee is not an academician and does not derive any pleasure in obtaining a
judgment for the sake of publicity or for laying down a legal precedent.
The Government through different functionaries, on the other hand, files
appeals, in most of the cases mainly out of fear of being questioned by
superiors as to why appeal was not filed.
Secondly, the Government does not have to pay any appeal fees. Thirdly
assuming the appeal is dismissed there is no accountability of the officers to
explain as to why such appeal frivolous are being filed.
Considering the above scenario, the Members of the Tribunal have a greater
responsibility. While hearing the appeals they are not merely adjudicating on
the issues before them but they are invariably deciding on the fortune of the
assessee. Whereas, one wrong decision against an assessee may ruin his life
and relegate him to the position of a pauper, the same against the Government
may affect the coffers of the Government only to an extent of a drop in an
ocean. Hence, the Tribunal Members have greater responsibility to the citizen.
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Pendency of appeals before the Income Tax Appellate Tribunal has reduced from
3,00,000 to 70,000. Now the assessee can get the justice from the final fact
finding authority in some of the zones within six months of filing the appeal.
Even in Mumbai, the appeal where the assessed income is less than Rs. 5,00,000
is heard within six months filing the appeal. Tribunal has been able to reduce
the pendency by innovative method of clearing the old appeals and disposing of
the small matters, covered matters etc. expeditiously. For reducing the
pendency, the contribution and sincere efforts of the President, Vice
Presidents, Members, Staff, Contribution of the Bar and Departmental
Representatives, deserves to be appreciated.
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The Hon’ble Apex Court in Mangat Ram vs. State of Haryana (www.itatonline.org)
has held that, the Courts and Tribunals must pass final orders, only after
recording reasons in support of the order. The Hon’ble President of ITAT has
issued the guidelines to the Members to take in to consideration the various
factors while passing the orders. The said guidelines are reported at AIFTP
Journal – July, 2008 issue page No. 35 as well as at www.itatonline.org. If
the Hon’ble Members strictly follow the guidelines, there may not be any scope
for Miscellaneous Applications either by the assessee or by the department. In
cases, where the guidelines are not followed, it is the duty of the
professionals to bring to the notice of the Hon’ble President so that the
remedial measures can be taken by the Hon’ble President.
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At “All India Conference” held at Delhi on behalf of the Federation, the
following suggestions were made to the then Advisor to Hon’ble Finance
Minister:–
One of the very important provisions introduced in the Maharashtra VAT
legislation is the provision for obtaining Advance Rulings on the
interpretations of any provision of this Act, Rules or Notifications in
respect of a transaction proposed to be undertaken by any registered dealer
even though any question relating to the said provision has not arisen in any
proceeding. The Advance Rulings will be given by the Bench constituted of
three members of Sales Tax Tribunal, Senior Practitioners nominated by the
President of the Tribunal and Officer of Sales Tax Department not below the
rank of Jt. Commissioner nominated by the Commissioner of Sales Tax.
The Federation has made an appeal to the Union of India to introduce such
provision under the Income-tax Act and Central Excise, Customs & Service Tax
for all residents, which can reduce the litigation.
Federation has also made suggestions that, the Income-tax Act may be amended
and the orders of the Commissioners under sections 264, 273A, appeals against
the orders under section 179, re-opening under section 148 may be made
appealable before the ITAT. This will save substantial time of High Court.
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We are happy to note that all judgments of the ITAT Mumbai and Delhi are
published in www.itatonline.org however, the citizens are not able to download
from the website. We desire that similar to Bombay High Court and Apex Court
all orders of the ITAT may be published in the official site of ITAT so that
the citizens can access and download from the website. This will help for
better representation before the Tribunal.
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It may be heartening to note that the Commissioner of Sales Tax of Maharashtra
taking into confidence of Sales Tax Practitioners Association of Maharashtra
has prepared a road map for the Sales Tax administration and computerization
of sales tax assessment and procedure. We desire that the ITAT also should
prepare a road map for the computerization, so that the assessees and
department is able to file an appeal by e-mail, notice of hearing and orders
can be sent to the concerned parties by e-mail. It may also possible know the
issues pending before various benches of ITAT, which may help for grouping of
matters and speedy disposal of matters.
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On the occasion of 40th anniversary of the Income Tax Appellate Tribunal, Late
Shri N. A. Palkhivala in his article stated that “There is no doubt that over
the period of 40 years, the Tribunal has been manned by some very able men.
Quite a few of them would be fit to adorn any High Court Bench. No other
Tribunal in India has won such well deserved popularity and confidence of the
public as the Income Tax Appellate Tribunal.”
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We are of the considered view that Bar and the Bench has to pay a positive
role to preserve its Dignity, Sanctity and Purity. It is worth appreciating
that the, ITAT Bar Association, Mumbai has constituted a three members
committee to look in to any suggestion to maintain the honour and dignity of
the Income Tax Appellate Tribunal. If other Tribunal Bar Associations also
takes a positive step, the same will definitely help to maintain the glory of
the mother Tribunal. The above suggestions are objectively in the interest of
Mother Tribunal which is considered as one of the finest institutions of our
country, even today.
We wish all our readers, A Happy Diwali and Prosperous New Year.
Dr. K. Shivaram
Editor-in-Chief |