ADJUDICATION--MY EXPERIENCE

[Sadanand Bulbule]

 ADJUDICATION—MY EXPERIENCE.

1] The word “adjudicate” comes from the Latin word judicare, which means "to judge." The word 'adjudication' has not been defined in the GST Act. However, Section 2(4) of the CGST Act which deals with the definitions defines "adjudicating authority" as under:

(4) “adjudicating authority” means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Central Board of Indirect Taxes and Customs, the Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the National Appellate Authority for Advance Ruling, the Appellate Authority, the Appellate Tribunal and the Authority referred to in sub-section (2) of section 171;

2] A reading of the above Section shows that adjudicating authority means any authority competent to pass any order or decision under this Act. The word "adjudicating" should be read in a wider and popular sense keeping in view the scheme of the Act. Equity is the object of true adjudication.

3] Under the GST Act, Section 73 & 74 are dedicated for adjudication by the authorised officers provided the specific ingredients of these two sections are evidently established before initiating the proceedings to determine tax amount by strictly following due legal process. Importantly under the scheme of adjudication, there is no scope for estimation or extrapolation of turnover. Adjudication is to be done strictly transaction-wise, based on cogent evidence.

 4] So each case should be decided on its individual merits on the standards prescribed under the Act, which are not to be modified to suit one’s own interests. These standards also include civilized thoughts, fairness and justice. These must not be ignored. Otherwise there is huge frustration and disillusionment about the fairness of proceedings guaranteed by the law. Otherwise it becomes fusion of obfuscation and confusion. Therefore the job of adjudication is very “sensitive”. Adjudication needs to be done by logic and by scientific reasoning and not to meet the revenue targets. Adjudication power commensurate with adjudication responsibility.

5] Genuine adjudication is the other face of honest decision. So the authorities must be held responsible for any adjudication if it is against the law. They are appointed to respect the law and not to manipulate it, irritate it and to sprinkle salt on the deep wounds. Let the law rule the adjudication democratically, rhythmically, powerfully, energetically, easily and not by the adjudicator’s impulses. This requires considerable courage, efficiency and technical expertise. There is no other way. It means the adjudicator is held accountable to the law. If adjudication is not this way, then it is difficult to imagine what is.

6] Intellectual independence of mind needs to be safeguarded to the adjudicating authority. If someone’s opinion is his opinion, then what is his existence?  Always intent is more important than content. This is what the superior courts always look at. “Forwarding” of blunt external opinions in the form of investigation reports can be manipulated. Such opinion is not authoritative and conclusive. External opinions are not Good Morning or Good Night “WhatsApp” messages to forward blindly just like that. In reality, they are supposed to be statutory reports based only on facts. It’s a support system for fair adjudication. These days most of the investigation reports and desperate interpretations talk about everything under the sun except the facts. Adjudicating authority being quasi-judicial authority has to function independently to ensure equity to the stakeholders and not under the undue influence of external opinions. The greed of biased adjudication is; for a piece of grass, pulling off the fertile ground, the legitimate business.

7] Indirect taxes like GST are collected and remitted to the government by the taxpayers. This is not a matter of charity, but as a lawful duty in the interest of public welfare. That is why there is no thanksgiving formality to them. However the adjudicator should stop assuming proprietary attitude towards taxpayers to extract more & more tax by abuse of power. Most of the adjudicators are practically unwilling to admit the facts, as they are forced to crawl into the lightless tunnels of revenue targets. Appellate offices are crammed with litigations which are revolved around ‘target’ oriented demands to fetch at least 10% or 20% pre-deposit of disputed tax amount. The logic is, anything is better than nothing to support revenue collection temporarily. Perhaps such orders are passed with different attitudes and for different reasons.

8] Surprisingly this has become a typical “regular” trend. For this reason alone, most of the adjudication orders look like a web spun by a drunken spider. And finally such spider himself gets trapped in the web. Consequently more number of Appellate Authorities are created to handle the mounting litigation. This is like widening the needless battle field and setting a different clock system. What is required at this point of time is not more number of Appellate Authorities but the ability to prevent litigation. Real remedy lies in controlling the litigation and not increasing the dosage of medication for incurable diseases. Law never promotes litigation. Litigation are always created.

9] The makers of GST regime bugle that, there should be equity to everyone. These days taxpayers are better educated. Their new needs are broadening and increasing because of global business. They are asking for more & more better facilities from government in return. Sometimes they can pull out the officers in tax debates. So they cannot be taken for granted. Assuming this attitude is really in place, the dream of “ease of doing business” seems nearer to realisation. Otherwise only litigation and no tangible solutions.

10] Adjudication is altogether different from mundane assessment of tax. There is world of difference. The days of assessment of tax have gone long back. If anyone is glued to that obsolete perception, it is tragedy. It’s high time to come out of it quickly. As long as the adjudication is honest, there is no “pressure” on anyone. Of course no adjudication is final, but subject to correction by the higher courts on merits. Before that, if such principles are followed sacredly, the respect for adjudicators will reach to the highest level. And automatically litigation will be less than minimum. The adjudication is a personality issue and a sense of ethical responsibility too.

Quality is not our option, it is our holy duty.

11] The sole idea is to make quality the centrestage of adjudication process and it is not an option for the stakeholders. ‘Zero Defect and full effect’ of adjudication should be at the forefront and it is the need of the hour to uphold the rule of law.

12] Saints have said, “a man is what he thinks all the day long”. So also the adjudicator. He needs mind’s eye to get the most out of himself and see transformation in himself in terms of “good” or “evil” effect of his decisions.

Take away:

13] Adjudication is not an amusement. It needs straight facts and practical considerations with accuracy. We are living in the digital age. There are multi-dimensional ways to tap the leakage of revenue and it needs devoted determination. End of the day, truth shall come out which would quench everyone’s thirst for quality and thereafter no question remains unanswered. Collateral damage can also be avoided. Time cannot travel back. Damage done cannot be undone easily. So also spoken or written words cannot be taken back.

14] The whole aim is, the adjudicator should be first correct, before he expects the taxpayers to be correct. A rough character cannot expect the next man to be silky soft. Think twice before you open your mouth and pen. Finally the adjudicator having got more than enough perks should answer, do I care for law? And owe something to the society? Otherwise milk and honey taste sour.

Discussions to this article

[deepak gulati]

This is a highly important and relevant topic given the current situation. A key aspect is the accountability of the administration, which should extend beyond adjudication to all areas and government departments. 

[KASTURI SETHI]

Sh. Sadanand Bulbule Ji,

Sir, Your article should have been titled as "An Outcry From A Bleeding Heart' Or 'My Bitter Experience With The Adjudicating Authorities". Anyhow my voice will also reach the Govt. Officers/Administrators who will read your article.

Thanks a lot for writing such article in public interest.

 

[Sadanand Bulbule]

Dear Sethi Sir

Your suggestion to reframe the title is perfect. It is my bitter and bleeding experience. Further I add couple of lines here:

It is a question of serious importance.... because of certain fundamental principles of adjudication are being ruthlessly over thorwn by many adjudicators. It is a terrible and high handed way for a public official to act maliciously. Many of them are not anxious to learn the basic facts of the other side. Especially, while operating Section 129 and 130, they dictate like "Sultans".

Though the GST Act has not given absolute power to the officials, it reminds me an old saying:

 "You want to give the people a fur coat when what they need is underwear".

 Which one is essential? A fur coat or an underwear? Choice is left to the wise chooser.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, Fair justice is our fundamental right.

"My Experiment (Experience) With Truth (Adjudication)"

Pl. write an article on the pattern of book, "My Experiment With Truth." based on factual experience with various Adjudicating Authorities.

[Sadanand Bulbule]

Dear Sir,

The  sadder event on the other side of the table is , even most of the taxpayers are losing urge to fight for merits. They have developed the tendency to easily surrender to the authorities saying they want to “buy peace of mind”, which has its own price. In fact, peace of mind is neither sold nor bought. It is to be attained by fighting on the right side. So such helplessness of taxpayers is a vantage point for the authorities to encash the situation in their favour.

Moral of the story:

Taxpayers too don’t have enough patience to defend their own merits because of their vulnerability. 

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

                    Yes, Sir.  It is the real bottleneck.

[Sadanand Bulbule]

Dear all

The intent of sharing my experience here is, a curb is needed on such wanton abuse of power. Let the top administrators look at this side in the larger interest of democratic adjudication, which is the wish of  law makers.