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Special Bench of ITAT affirms the Opinion
September, 21st 2009

Allowing Ved Jain, S.C. Tiwari, Rakesh Gupta, Anoop Sharma, Salil Kapoor,  Y.K. Kapoor, K.C. Singhal, M.V.R. Prasad, T.N. Chopra, Prakash Narain and  Keshav Prasad, all ex-members of ITAT , to appear before ITAT; Special Bench of ITAT vide AIT-2009-359-ITAT has ruled that:

No doubt the Ministry, as it were, built a nice palace so that all of us in the ITAT could lead a happy and blissful life hereafter, used strong bricks, good cement and ISI marked steel but they built, in our view, on a loose soil or sandy bed or say without taking ecological clearance. The palace so built, although of strong structural components, is likely to crumble. The same is true here.

Rule 13E, which was the bone of contention, was inserted by the Notification G.S.R. 389(E) dated 3-6-2009 issued by the Ministry of Law and Justice and reads as under:

13E. The President, the Senior Vice-President, the Vice- President and the Member of the Tribunal shall not practice before the Tribunal after retirement from the service of the Tribunal. 

The Special Bench, was constituted to answer the following questions:

1.Whether, the said Notification applies to the Members who have retired prior to the date of publication of the Notification?

2.Whether, the said Notification applies only to the Members who retired from the Tribunal on and from the date of publication of this Notification?

3.Whether, the said Notification applies to those Members who are recruited before but retire after the date of Notification?

4.Whether, the said Notification applies to the Members who retire, if otherwise are qualified to practice u/s 288 of the Income Tax Act, should still be debarred to appear and argue before the Tribunal?

5.Whether, the said Notification applies to the Members who resigned from services before the date of Notification, without any retirement benefits?

6.Whether the said Notification applies to the Members who are appointed on temporary basis and resign from service without being confirmed during the probation period, either before or after the date of Notification, without any retirement benefits?

Special Bench decided that matter as under:

(1)In our view it does not apply to Members who have retired prior to the date of publication of notification.

(2)In our view the question no. 2 is answered to the effect that it applies to the Members who retired from the Tribunal on or after the date of the publication of this Notification.

(3)That once the Member reties after the date of Notification, it certainly applies. It does not matter when the Members were recruited. Even it applies to the Members who are recruited prior to the date of Notification. Crucial date must be the date of retirement. If it is after 3rd June, 2009, it applies.

(4)Question no. 4 is answered that the Members who retire on or after 3-6-2009, even if otherwise qualified to practice u/s 288 of the Act, would still be debarred to appear and argue before the Tribunal, in the light of Rule 13E of the ITAT Members (Recruitment and Conditions of Service ) Rules, 1963.

(5)Persons who have resigned from service prior to the date of Notification, without any retirement benefits would not be covered by this Notification because it applies to those persons who have retired after the date of Notification.

(6)As regards question no. (6), we say the notification does not apply to members who are appointed on a temporary basis and resign from service without being confirmed during probationary period. 

Special Bench also hit at the Bar Associations by observing that the President had sent two representations received from ITAT Bar association Mumbai and ITAT Bar Association Rajasthan for consideration of the same as per law. They stated in the said representations that they support the notification by the Ministry in the light of the decision of P.C. Jains case. We would have certainly appreciated their personal appearance and arguments. We must say that no legal issue can be decided on the basis of some perception of the matter in one quarter of the society. We have to go by the judicial interpretation that the law enacted by the Parliament/ Rule making Authority has received. In the light of the discussions made, we feel that we have done it. After all no law can be interpreted in a manner that pleases one section or to achieve the objects which they feel is right unless the legislature wants it that way in the expressed legislation.

Thus the interpretation of Bar Associations and Media was found to be patently wrong by Special Bench. Bar Associations have also lost their credibility by jumping on a misleading conclusion on such a sensitive issue comprising their own members. It is strange how it happened when several Office Bearers of Bar Associations are considered to be Legal Experts or a section of them could not digest sudden success of some ex-ITAT Members and were facing stiff competition. Whether there was a hidden agenda or a game-plan to keep a section out of the match by declaring them injured and not fit to play?  Whether the action by Bar Associations will lead to another parallel Bar Association comprising of Ex-ITAT Members-only the time will tell. But Bar Associations must go for a soul searching to contain the damage to their credibility. The resignations by office bearers may be first step in such direction.

Only Allindiantaxes opined that the restriction does not apply to Ex-Members of ITAT who had already retired before the issue of Notification and the restriction will apply only in case of existing members after their retirement. Refer to AIT Report on the link below for details.

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