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TMI Blog2014 (6) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter has been placed before this Court. Notices were issued to the opposite parties on 04.07.2013, on which separate replies have been filed by the opposite parties. The facts mentioned in the reference made by Sri Sunil Kumar Yadav, the Senior Member of ITAT are extracted hereinbelow: The ITAT has been constituted under Section 252 of the Income Tax Act, 1961. Each Bench of the ITAT comprises of one Judicial Member and one accountant member. The ITAT has been entrusted to adjudicate the appeals arising out of the orders passed by the Chief Commissioner of Income Tax, Commissioner of Income Tax and Commissioner of Income Tax (appeals) under the Income Tax Act, Wealth and Interest Tax Act. The Lucknow Bench of ITAT exercises its jurisdiction over the districts of Barabanki, Bareilly, Basti, Bahraich, Faizabad, Gonda, Hardoi, Kanpur Dehat, Kanpur, Lucknow, Lakhimpur Kheri, Pilibhit, Raebareli, Shahjanpur, Sitapur and Unnao. It has been asserted in the reference that this Court is well within its jurisdiction to initiate criminal contempt proceedings as ITAT, Lucknow can be termed to be a "subordinate court" within the meaning of the said word occurring in Section 15 (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know Income Tax Tribunal Bar Association. In the said representation, the opposite party No.1 further states that some members of the profession might have found the behavior of B.R. Jain, the Accountant Member to be awkward and embarrassing but for that, members of the profession themselves are to be blamed. From perusal of the representation, it appears that S.K. Garg did not favour or approve the resolution dated 25.08.2012, passed by the Lucknow Income Tax Tribunal Bar Association complaining against the behaviour of the Accountant Member of the Tribunal, B.R. Jain. The opposite party No.1 in his representation further appreciates the approach of B.R. Jain as being judicious and states that the said Accountant Member never caused and meant undesirable or humiliating situations for the counsels. Representation/letter dated 28.08.2012 clearly states that opposite party No.1 and other members of the profession disapproved the resolution dated 25.08.2012, passed by the Lucknow Income Tax Tribunal Bar Association. However, while denouncing the resolution passed by the Lucknow Income Tax Bar Association against the conduct of the Accountant Member-B.R. Jain, the opposite party No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representation dated 28.08.2012 made by S.K. Garg were read in open court, hence, opposite parties are guilty of committing criminal contempt for the reason that by reading the contents of the adjournment application and the representation (which according to the complainant contains scandalous and scurrilous allegations against the complainant), opposite parties have publicized the contents of the adjournment application and the representation which scandalizes the Tribunal and further tends to interfere with due course of judicial proceedings. It has, thus, been stated by the complainant that by reading the contents of adjournment application and the representation in open court, the contents of these two documents have been made public during course of hearing of the appeal, hence both the opposite parties are guilty of committing criminal contempt. After noticing the aforesaid contents of the reference made by the complainant, we may also notice, as stated in the reference itself, that though Sunil Kumar Yadav, Senior Member of the ITAT proposed an order for making reference for initiation of criminal contempt proceedings against the opposite parties to this Court under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court or the Tribunal or to interfere or tend to interfere with the due course of any judicial proceedings or to obstruct the same. It has also been stated by opposite party no.1 that he is the elected President of Income Tax Appellate Tribunal Bar Association at Allahabad. He has further stated in his reply that neither he nor his associate Pradeep Kumar Kapoor-opposite party no.2 were parties to the resolution dated 25.08.2012 passed by Income Tax Tribunal Bar Association, Lucknow. Opposite party no.1 has also mentioned the order passed by the complainant on 27.08.2012 on the application for adjournment coupled with the resolution dated 25.08.2012, passed by Income Tax Tribunal Bar Association, Lucknow against the conduct of the other member of the Tribunal. He has also referred to the separate order passed by B.R.Jain on 27.08.2012. In his reply, S.K.Garg has also stated that apart from Income Tax Tribunal Bar Association there is another Bar Association at Lucknow, namely, Income Tax Bar Association, Lucknow which is a larger representative body of the professionals and is distinct from Income Tax Tribunal Bar Association. He has averred that Income Tax Bar Association had c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious grievance against the orders passed in the cases of Ravi Agarwal, Bareilly in ITA No. 612/LAW/2010 and Fortuna Foundation Engineers and Consultants Pvt. Ltd, Lucknow in ITAT No. 283/LKW/2012 and also against the case No. Ziauddin Ahmad, Kanpur in ITA No. 117/LKW/2011, which is pending for disposal with the Bench and levelled certain baseless allegations against the judicial member S.K.Yadav in conducting Bench. He has also made a request through his representation to Hon'ble President, ITAT that all the appeals which are being represented by him may be transferred to some other Bench and he is ready to bear the cost in conducting the cases outside Lucknow." Opposite party no.1, in his reply, has also stated that about the utterances made by the complainant on 30.08.2012, he on the very next day i.e. 31.08.2012, wrote a letter to the President, ITAT, Mumbai informing the President about the utterances made by the complainant and submitted that such instance amounted to exercise undue influence on the counsels. S.K.Garg, in his reply, has also annexed a copy of an order dated 06.09.2012 passed by the complainant as annexure no.6 and has also quoted the following extract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directing the registry of the ITAT to issue a letter to the assessees in all the cases in which S.K.Garg, Advocate appears and ascertain from the assessees as to whether they have given their consent in respect of the prayer made by S.K.Garg to transfer their cases from Lucknow Bench to Agra or Delhi Bench, ITAT. The Assistant Registrar thereupon issued notices to the assessees. One such notice has been annexed as annexure no.8 to the reply filed by opposite party no.1, the contents of which are extracted below:- "I am directed by Hon'ble Senior Member to inform you that your advocate Sri S.K.Garg authorized by you to represent your IT appeals etc. has moved a representation dated 28.08.2012 to the Hon'ble President, ITAT with a request to transfer your appeal(s) from ITAT, Lucknow to ITAT, Agra or Delhi. On the perusal of representation, it is not clear whether such request was made after obtaining proper consent from you. In view of the above, you are requested to kindly confirm to this office within 15 days from the date of receipt of this letter whether you are interested or otherwise in transferring your appeal(s) from Lucknow Bench to ITAT, Agra Bench or Delhi so t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout functioning of the Judicial Member as the President is the head of the institution. It has further been stated that so far as annexing the copy of the representation dated 28.08.2012 with the adjournment application moved on 30.08.2012 is concerned, the same was not meant for perusal of anyone other than the complainant. Opposite party no.1 has also stated that neither the copy of the adjournment application dated 30.08.2012 nor even the representation dated 28.08.2012 annexed with the said application was provided even to the Accountant Member, B.R.Jain. The defence has also been set up on the basis of the provision of Sections 5 and 6 of the Contempt of Courts Act. Opposite party no.2 has also filed his reply to the show cause notice issued to him almost on the similar lines after tendering his unconditional and unqualified apology, however, asserting that he also never had any intent to scandalize or lower the dignity of the Tribunal or to scuttle the judicial proceedings in any manner. From the pleadings available on record, the issue which emerges for determination by this Court is two folds: (a) as to whether on the basis of reference made by only one member of the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n AIR 1981 SCC 723. In the said judgement, it has clearly been held that sub section (2) of Section 15 of the Act, if properly construed, does not restrict the power of the High Court to take cognizance of and punish contempt of a subordinate court, on its own motion. Hon'ble Supreme Court has further held in this case that in a case where this Court is directly moved through a petition by a private person, not being Advocate General, without the consent in writing of the Advocate General, a discretion always lies with this Court to refuse or to entertain or to take cognizance on its own motion on the basis of information supplied to it through such a petition. The reason why we have adverted to the aforesaid issue of this Court taking suo-motu cognizance of any criminal contempt of a subordinate court is that in the instant case, admittedly, the reference made can not be termed to be reference by the Tribunal for the reason that Tribunal admittedly comprises of two members and the reference has been signed and made by only one member i.e. the complainant, who is the Judicial Member. Accountant Member is not a party to this reference. Thus, the instant reference, in our consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular act of an Advocate (i.e. moving the representation dated 28.08.2012 by the opposite party No.1). The complainant has even observed in the said order that Bar Association should pass the resolution in a particular manner giving assurance that in case of decision in the any case, no such type of representation or complaint will be made to the President of ITAT and further that the protection be given from President of the ITAT with the assurance that such type of complaint/representation would not be entertained and erring Advocate will be dealt with severely. The said view expressed by the complainant-S.K. Yadav, who is Judicial Member of the ITAT, though was not agreed to by the other member, namely, B.R. Jain, Accountant Member, however, such observations, as the one made by the complainant in a judicial order, in our considered view, are unacceptable. This observation by us, however, does not mean that this Court in any manner intends to dilute the well accepted principle that Presiding Officer or members of a Tribunal or court should always be protected and they should be made to work in an environment which is conducive to discharge their judicial duties/functions. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e party No.2 publicized the contents of the said representation. It has been categorically stated by opposite party No.1 in his reply that as per information provided to him by opposite party No.2 it was the complainant who ordered the opposite party No.2 to read certain paragraphs of the adjournment application and extracts of the representation dated 28.08.2012. It has also been stated categorically by the opposite party No.1 that the copy of the representation was not provided to anyone including even the other member i.e. the Accountant Member of the Tribunal as in the Tribunal there is a practice that adjournment application is given to the senior member who generally presides over the Tribunal. He has also stated that the representation dated 28.08.2012 was most confidential and that it was kept confidential only to be sent to the President of ITAT raising certain grievances in respect of the conduct of the complainant. Similarly, the opposite party No.2 in his reply has also stated that he has moved an application for adjournment on 30.08.2012 on the instructions of the opposite party No.1 and on the said date the complainant directed him to read the extracts from the repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sense. Having regard to the nature of proceedings under the Contempt of Courts Act and also on the basis of material available on record and taking into account the surrounding circumstances of the instant case, in the result, we are unable to agree with the complainant that opposite parties have committed criminal contempt so as to attract punishment therefor under the Contempt of Courts Act. Accordingly, notices issued against the opposite parties are liable to be discharged. We order accordingly. Before parting with the case, the Court, however, also feels it appropriate to put it on record that the lawyers and other representatives of the litigants in the subordinate courts and Tribunals are expected to conduct themselves in a manner which protects the dignity and decorum of the judicial proceedings. Use of words, as narrated above, by the opposite party No.1 in his representation dated 28.08.2012 is not worthy of approval. We express our hope that lawyers will always be guided by the following observations of Hon'ble Supre Court made in the case of Hargovind Dayal Srivastava and another Vs. G.N. Verma and others, reported in AIR 1977 SC 1334. "It is the duty of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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