9911796707
TMI Blog1997 (5) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... there does not appear to be any stay granted by the Tribunal. On the contrary, the case is coming up for hearing on the basis of approval by the administrative authorities of Tribunal. Such cases should be heard on the directions of the Bench alone and not by the orders of the administrative authorities. Reliance is also placed on the decision dated 24th March, 1997 in I.T.A. No. 628 (Mad.)/96. The Tribunal there in has directed the Registry that not only in that appeal of that assessee but also even in respect of other cases the petitions for early hearing should be put up before the particular Bench through Hon'ble Vice-President. Therefore, these appeals should not be heard by this Tribunal early as ordered by the administrative authorities. 4. On the other hand, the learned counsel for the assessee countered THAT: The assessees' counsel by their petition dated 19-3-1997 addressing the Tribunal has informed that due to the departmental pressure for payment of taxes the assessees are suffering, apart from heart disease and that therefore the appeals were prayed before the Tribunal for being fixed for early hearing. Such stand has also been strengthened by their another petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying for fixing an early hearing but only the appeals fixed for early hearing on the day cause listed under the directions of the Hon'ble Vice-President who has passed an order after duly considering the material papers filed by the assessee before him. But we are compelled to enter into this arena as to whether there is power for the administrative authorities of the Tribunal to direct an early hearing as a result of the preliminary objection raised by the Department by way of filing its petition dated 30-4-1997 and further relying upon the decision dated 24-3-1997 of the Tribunal, not only in the instant appeals but even in some other appeals which had been fisted for early hearing wherein time and again such preliminary objection is being raised by the Department for early hearing fixed. Therefore, we are fored to pronounce our opinion in this regard especially when the Revenue before us has focussed our attention that the order of the Tribunal relied upon by it has to be followed for reasons of uniformity and consistency. 5.3 We have carefully gone through the aforesaid order of the Tribunal with great reverence and respect and we also do appreciate the spirit and principle d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the Registrar shall have the following powers and duties, namely:... (xiv) to fix cases out of turn on the direction of the President, Senior Vice-President, Vice-President or Senior Member". A perusal of clause (xiv) under sub-rule (2) of Rule 4A, therefore, clearly demonstrates that even the Registrar of the Tribunal has got power to fix a case out of turn but only on the direction of the President, Senior Vice-President, Vice-President or Senior Member, who are in turn subjected to any general or special order of the President passed in this regard. To our knowledge, no general or special order of the President contrary to clause (xiv) referred to above seems to exist nor any such order of the President contrary to it has also been cited before us by the Revenue so as to sustain its stand that the early hearing fixed is wrong. We may also further observe that nowhere in the order dated 24-3-1997 of the Tribunal relied upon by the Revenue, the aforesaid specific provision of clause (xiv) vesting powers on the said administrative authorities to fix an early hearing has been discussed or at least referred to, much less even cited, unfortunately. In our considered view such ina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too. If on the other hand the Tribunal will be sustaining the stand point of the Revenue, the Tribunal will be violating its own Rules framed by it which would be highly improper and irregular. Further, the Tribunal also cannot strike down any of its own Rules, much less Rule 4A framed by it and inserted by the I.T.A.T. (Amendment) Rules of 1991 w.e.f. 25-7-1991, as it is incompetent to do so by an order of Bench at the instance of either, both or any of the parties before it. If at all, an amendment could be made to the I.T.A.T. Rules in this regard, rather in facts is desirable, for which steps have to be taken only through the Hon'ble the President of the Tribunal so as to restore the position prior to the amendment of the Rules. Under these circumstances, we have no other alternative than to reject the preliminary objection raised by the Revenue. By saying so, it is not that we are, strictly speaking, pronouncing that the early hearing fixed in the instant cases is sustained by us, though in effect it amounts so, since that is not our role as it is being sufficiently taken care of by the existing Rule 4A(2)(xiv) which also further has a safety value of the President's General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d capricious. The administrative authorities should be guided by clear norms while exercising discretionary powers. He has to function by an unbiased mind and decide in accordance with the principle of natural justice. We are discharging our judicial functions in a democratic country and not in a dictator's regime. Society must be governed by established principles so that the actions of the administration is forseeable. 2(iv). Further, Rule of Law limit the scope of action of the administrative authority in a developing society. The principle of Rule of Law is in contradiction to arbitrariness. No administrative action can march along the true democratic life without a true and continuous realisation of the importance of the Rule of Law. Our Constitution in its preamble aspires to build a sovereign, democratic republic dedicated to ideas of justice, equality and fraternity. The rule of law requires that administrative action should be subjected to law rather than the law subjected to administrative actions. In our country the power of administration cannot be so exercised so as to be derogatory or contravening any provisions of the Constitution or transgressing any of the fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of turn hearing. In this context, when the Tribunal hears an appeal it has jurisdiction to decide such preliminary issues which are raised by the litigant before it. It would not in any way affect the powers of the Vice-President or the Sr. Member given under Rule 4A(2)(xiv) because there is no dispute that rules are binding on Members of the Tribunal. What has to be considered by the Tribunal when a party raises a dispute against early hearing of the appeal, is whether the discretionary power conferred on the authority to direct early hearing of the appeal has been properly exercised or not. A decision of a Single Member could be overruled by the decision of a Bench and the decision of a Bench could be overruled by the decision of a Special Bench consisting of three or more Members. In a similar way, if a particular litigant is authorised for early hearing and is not able to satisfy the Bench the reason for early hearing of his appeal and gives no reply to the objections raised by the other party before the Tribunal, then there is no reason why in exercise of its inherent power the Tribunal cannot hear the objections raised by a party against the early hearing of the appeal, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
