9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (6) TMI 576 - AT - Income TaxDebar from practice - Whether Shri Deepak R. Shah, advocate and ex-Accountant Member of the Income Tax Appellate Tribunal, is debarred from practicing before the Income Tax Appellate Tribunal in view of the insertion of Rule 13 E in the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963 - Held that - though the power of the Tribunal u/s. 253 is to adjudicate the issues arising out of orders passed by the lower authorities as prescribed in the section and pass such orders thereon as it deems fit, but at the same time, the Tribunal has inherent and incidental power to regulate the proceedings which are conducted before it. For example, Rule 17A of the Income Tax Appellate Tribunal Rules, 1963 prescribes for the dress code of the representatives of the parties before it. Therefore, if a representative appearing before it is in proper dress as per the said rule or not is to be decided by the Bench of the Tribunal before which he or she is appearing. To say that the Bench of the Tribunal has no jurisdiction to decide this incidental matter as because this issue is not arising out of the orders of the lower authorities, in my view is preposterous. When the Tribunal cannot adjudicate whether an ex-Member of the Tribunal can appear before it as an Authorized Representative or not, the natural consequence of the view is that the Tribunal cannot debar an ex-Member of the Tribunal from appearing as an Authorized Representative - Shri Deepak R. Shah, advocate and ex-Member of the Income Tax Appellate Tribunal, cannot be debarred by the Tribunal from practising before the Tribunal Benches - Decided in favour of appellant.
Issues Involved:
1. Jurisdiction of the Tribunal to decide the applicability of Rule 13E. 2. Interpretation and applicability of Rule 13E. 3. Conflict between Rule 13E and Section 288 of the Income Tax Act. 4. Retrospective application of Rule 13E. 5. Distinction between resignation and retirement concerning Rule 13E. 6. Competence of the Tribunal to interpret service rules. Issue-wise Detailed Analysis: 1. Jurisdiction of the Tribunal to Decide the Applicability of Rule 13E: The Tribunal examined whether it had the jurisdiction to decide the applicability of Rule 13E, considering the judgment of the Hon'ble Allahabad High Court in the case of Dinesh Chandra Agrawal vs. Union of India, which observed that the interpretation of Rule 13E was beyond the Tribunal's competence as it only had jurisdiction over tax appeals under Sections 253 and 254 of the Income Tax Act. The Tribunal concluded that it lacked the jurisdiction to decide the issue on merits, following the binding decision of the Hon'ble Allahabad High Court. 2. Interpretation and Applicability of Rule 13E: The Tribunal discussed the insertion of Rule 13E, which states, "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 Tribunal noted that the rule was introduced via a notification dated June 3, 2009, and debated whether it should apply retrospectively or prospectively. 3. Conflict Between Rule 13E and Section 288 of the Income Tax Act: Mr. Deepak Shah argued that Rule 13E, being a subordinate legislation, should not override Section 288 of the Income Tax Act, which defines "Authorized Representative" and allows any legal representative entitled to practice in any civil court in India to appear before the Tribunal. The Tribunal acknowledged this argument but refrained from making a final decision due to jurisdictional constraints. 4. Retrospective Application of Rule 13E: The Tribunal considered whether Rule 13E should apply to members who retired or resigned before the rule's introduction. Mr. Shah contended that the rule should not apply retrospectively, especially since he had resigned before its introduction. The Tribunal did not delve into the merits of this argument due to its jurisdictional limitations. 5. Distinction Between Resignation and Retirement Concerning Rule 13E: Mr. Shah argued that Rule 13E should not apply to him as he had resigned, not retired, from the Tribunal. He emphasized that his resignation deprived him of certain benefits, and applying Rule 13E would result in double jeopardy. The Tribunal noted this distinction but did not make a conclusive ruling due to its jurisdictional constraints. 6. Competence of the Tribunal to Interpret Service Rules: The Tribunal discussed whether it was competent to interpret service rules, including Rule 13E. The Hon'ble Allahabad High Court's decision in the case of Dinesh Chandra Agrawal vs. Union of India clarified that the Tribunal did not have the jurisdiction to interpret such rules. Consequently, the Tribunal concluded that it could not decide on the vires or applicability of Rule 13E. Separate Judgment by Shri N. S. Saini, Accountant Member: Shri N. S. Saini disagreed with the majority view, arguing that the Tribunal had the jurisdiction to decide the referred question, especially since the Hon'ble Gujarat High Court had directed the Tribunal to reconstitute the Special Bench and decide the matter. He opined that Rule 13E, being a subordinate legislation, could not override Section 288 of the Income Tax Act. He concluded that Shri Deepak R. Shah should not be debarred from practicing before the Tribunal, as the Tribunal had the inherent power to regulate its proceedings and decide on the eligibility of representatives appearing before it. Conclusion: The majority view held that the Tribunal lacked the jurisdiction to decide the applicability of Rule 13E, following the binding decision of the Hon'ble Allahabad High Court. However, Shri N. S. Saini, in his separate judgment, opined that the Tribunal had the jurisdiction to decide the matter and that Rule 13E should not override Section 288 of the Income Tax Act. The final order was pronounced on May 23, 2014, at Ahmedabad.
|
