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2012 (2) TMI 13 - HC - Income TaxRestriction on appearance before tribunal - Rule 13E states taht, The President, the Senior Vice-President, the Vice-President and the Members of the Tribunal shall not practice before the tribunal after retirement from the service of the Tribunal - whether such restriction is ultra virus - held that - Till the next date of hearing, operation of the impugned rule 13E as well as the judgment in the case of Concept Creations shall remain stayed in so far as they impose a complete ban on the practice by retired members before the Tribunal. - Thus, it would be open for the retired members to practise before the Benches of Tribunal where they had not remained posted and held courts temporarily or on regular basis.
Issues:
Challenge to the validity of "The Income-tax Appellate Tribunal Members (Recruitment and Conditions of Service) Amendment Rules, 2009" and its application to retired members practicing before the Income Tax Appellate Tribunal. Interpretation of Rule 13E and its retrospective application by the Income Tax Appellate Tribunal in the case of Concept Creations. Jurisdictional authority of the Tribunal to impose a complete ban on practice by retired members. Analysis: Issue 1: Challenge to the validity of the Amendment Rules The writ petition challenges the validity of the Amendment Rules of 2009, specifically Rule 13E, which prohibits the practice of retired members before the Income Tax Appellate Tribunal. The petitioner argues that the rule is offensive as it completely bars retired members from practicing before the Tribunal. The court notes that while the rule may seem to be in public interest, it raises concerns about the retrospective application and the extent of the ban on practice. The court issues a notice to the opposite party to explain the jurisdiction and authority under which the Tribunal interpreted Rule 13E in a manner disadvantageous to retired members. Issue 2: Interpretation of Rule 13E and its retrospective application The court highlights that Rule 13E has been interpreted to apply retrospectively in the judgment of Concept Creations by the Income Tax Appellate Tribunal, Delhi. This interpretation goes beyond the Tribunal's jurisdiction, which is limited to tax appeals as per the Income Tax Act. The court stays the operation of Rule 13E and the judgment in Concept Creations, allowing retired members to practice before Tribunals where they had not served permanently. The vires of the rules are questioned, leading to a notice being issued to the Attorney General for India for a response. Issue 3: Jurisdictional authority of the Tribunal The court questions the authority of the Tribunal to impose a complete ban on practice by retired members before the Tribunal. By staying the operation of Rule 13E and the judgment in Concept Creations, the court allows retired members to practice before certain Tribunals. The matter remains pending for further hearing, indicating a need for a comprehensive examination of the jurisdictional aspects involved. In conclusion, the judgment addresses the challenges raised regarding the validity and application of the Amendment Rules of 2009, emphasizing the need for a balanced approach that respects the rights of retired members while ensuring the effective functioning of the Tribunal. The court's intervention through the issuance of notices and stay orders reflects a commitment to upholding principles of fairness and justice in legal proceedings.
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