2013 (8) TMI 708 - AT - Income Tax

Dispute between counsel (CA) and contents in the order sheet recorded by the Judicial Member of the Tribunal - Counsel disputed the contents of the order sheet - application is filed by Shri Pradeep Kumar Kapoor, C. A. in his individual capacity and not on behalf of the assessee with a request to either recall or expunge the order sheet entry dated 08/02/2013 - Passing of order by the Tribunal despite adjournment sought by the counsel - order was passed not in the open court - manner in which appeal are listed for hearing and adjournment of the same - Conduct of the professional before Tribunal appearing on behalf of assessee Held that - No professional has any right to invoke the judicial machinery for his own interest without any reasons. If he does so it would amount to professional misconduct on the part of the professional. Moreover, to dispute the proceedings of the court, without any cogent material, is also an attempt to scandalize the court and also to create hindrance in the proper judicial functioning of the court which cannot be permitted under any circumstances. If it is allowed to be done, the judicial system will collapse. There is hierarchy in the judicial system. If someone is aggrieved with the judicial order passed by any judicial forum, he may approach the higher forum against that order and get the redressal of his grievance but he has no right to make an attempt to scandalize the court by moving such a frivolous application. Not able to understand, what benefit Shri Pradeep Kumar Kapoor will get by moving such type of application as this application has been filed by him in his individual capacity and without the consent of the assessee. It is unheard in the judicial system that some professional can appear before the judicial forum under protest and argue his case. It is for the professional to take a decision in this regard whether he wants to appear before a particular court or judicial forum or not. Shri Pradeep Kumar Kapoor has no right to argue any case under protest even if his contention is accepted. It is for him to take a decision whether he wants to appear before a particular court or not but the court is not obliged to adjourn the hearing only for the reason that he does not want to appear before it. During the course of hearing of appeal on 08/02/2013, Shri Pradeep Kumar Kapoor has not shown any resentment or reservation with the Bench in arguing his case. He happily made the statement that he has no reservation with the Bench and he is ready to argue the case as per instructions from his client. Accordingly, the appeal was heard. Now after the disposal of appeal or even after 48 days from the disputed date of hearing the present application is moved disputing the facts recorded in the order sheet dated 08/02/2013 without any corroborative evidence. Application dismissed with the cost of Rs. 5,000/- to be recovered as arrear of income tax from Shri Pradeep Kumar Kapoor, C. A. as this application was filed in his individual capacity and not on behalf of the assessee. Issue referred the President of Institute of Chartered Accountants with a request to take necessary action as per law against Shri Pradeep Kumar Kapoor for his professional misconduct and also to take corrective measures and necessary steps to educate its members to behave with the judicial authorities befitting to their status and should not be engaged in scandalizing the judicial authority/courts.

Issues Involved:
1. Application to recall or expunge order sheet entry.
2. Maintainability of the application filed by the authorized representative in individual capacity.
3. Judicial Member's recusal from hearing cases represented by specific advocates.
4. Professional conduct and ethics of advocates and chartered accountants.
5. Contempt proceedings and judicial decorum.

Issue-wise Detailed Analysis:

1. Application to Recall or Expunge Order Sheet Entry:
The authorized representative of the assessee, Pradeep Kumar Kapoor, filed an application requesting the recall or expungement of the order sheet entry dated 08/02/2013. Kapoor contended that the entry did not conform to the actual proceedings and that he had not been informed about the listing of the case for hearing. He argued that he had sought adjournment due to the Judicial Member's recusal from hearing cases represented by his senior colleague, but the appeal was still listed and heard on 08/02/2013 despite objections.

2. Maintainability of the Application Filed by the Authorized Representative in Individual Capacity:
The Tribunal examined whether Kapoor, as an authorized representative, had the locus standi to file the application in his individual capacity after the disposal of the appeal. The Tribunal noted that once the appeal is disposed of, the power conferred upon the professionals by virtue of the Power of Attorney comes to an end. The Tribunal emphasized that the ITAT is created to adjudicate issues between the assessee and the Department, not to redress grievances of professionals. Therefore, the application filed by Kapoor in his individual capacity was deemed not maintainable.

3. Judicial Member's Recusal from Hearing Cases Represented by Specific Advocates:
The Tribunal addressed the issue of the Judicial Member's recusal from hearing cases represented by specific advocates, including Kapoor and his senior colleague. The recusal was initially made under peculiar circumstances due to contemptuous allegations against the Judicial Member. However, the Tribunal clarified that the Judicial Member had no reservation in hearing appeals represented by any advocate or chartered accountant, including Kapoor, after making a reference for criminal contempt of court against them to the Hon'ble High Court of Allahabad. The Tribunal concluded that the controversy regarding the Judicial Member's recusal no longer subsisted.

4. Professional Conduct and Ethics of Advocates and Chartered Accountants:
The Tribunal emphasized the professional ethics and conduct expected from advocates and chartered accountants. It cited various judgments of the Apex Court, highlighting that advocates have a duty to attend trials and represent their clients sincerely and honestly. The Tribunal noted that no advocate can take it for granted to appear in court according to their whim or convenience and that abstaining from court proceedings without justifiable reasons is unprofessional and unbecoming of an advocate's status. The Tribunal stressed that judicial authorities cannot be forced to adjourn hearings due to the absence or refusal of advocates to appear.

5. Contempt Proceedings and Judicial Decorum:
The Tribunal discussed the issue of contempt proceedings and the importance of maintaining judicial decorum. It noted that the Judicial Member had made a reference for criminal contempt of court against Kapoor and his senior colleague to the Hon'ble High Court of Allahabad, which was sub judice. The Tribunal emphasized that any attempt to dispute court proceedings without cogent material is an attempt to scandalize the court and create hindrance in judicial functioning. The Tribunal dismissed Kapoor's application as highly misconceived, contemptuous, and moved with the intention to browbeat and scandalize the court. It imposed a cost of Rs. 5,000 on Kapoor to be recovered as arrear of income tax.

Conclusion:
The Tribunal dismissed the application filed by Pradeep Kumar Kapoor, C.A., with a cost of Rs. 5,000, emphasizing the importance of professional conduct, judicial decorum, and the proper channels for addressing grievances against judicial orders. The Tribunal directed the Registry to send a copy of the order to the President of the Institute of Chartered Accountants of India for necessary action against Kapoor for professional misconduct.

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