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TMI Blog2024 (11) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... Memorandum dated 27.10.2017 was set aside. 3. The brief facts of the case are that the respondent was posted at Kolkata as Commissioner of Income Tax (Appeal) [in short, CIT(A)] in the year 2008. While discharging his duties as CIT(A)-VI, additional charge of CIT(A)-VIII was given to him during the period from 11.06.2008 to 30.07.2008. On 18.07.2008, the respondent decided and allowed an appeal preferred by an assessee against the assessment order passed by the Assessing Officer dated 31.12.2007 for the assessment year 2005-2006 and reversed the finding of the Assessing Officer and allowed sales commission and purchase commission to the assessee which were disallowed by the Assessing Officer. 4. Against the order dated 18.07.2008 passed by the respondent, while holding the additional charge of CIT(A)-VIII, Kolkata, Revenue had preferred an appeal before the Income Tax Appellate Tribunal, "A" Bench Kolkata (in short, ITAT) and the ITAT, Kolkata vide order dated 21.07.2011 allowed the said appeal and reversed the finding of the respondent allowing the sales commission and purchase commission to the assessee to the tune of Rs. 120,55,52,350/- and affirmed the finding recorded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tune of Rs. 120.55 crore by the assessee to two local commission agents were sham transactions. The case was also selected by the charge CIT, as one among "Best Assessment Orders" under his charge. The concerned Assessing Officer, who was present during the course of hearing before the CIT(A) was handed over a copy of the argument filed by the assessee. However, the additions made were deleted by Shri Vinay Kumar, CIT(A) within three days of the first hearing in the case without bringing in any additional facts and without waiting for the report from the Assessing Officer. Thus, Shri Vinay Kumar, CIT(A) deleted the entire addition under consideration based on wrong appreciation of facts, by giving only a token opportunity to the Assessing Officer and passing the order "in haste". By the aforesaid act of omission and commission, Shri Vinay Kumar had failed to maintain absolute integrity and had thus, exhibited conduct unbecoming of a Government servant in violation of Rules 3 (1) (i), 3 (1) (ii) and 3 (iii) of CCS (Conduct) Rules, 1964." 8. The said Memorandum of charge was served upon the sole respondent on 27.12.2017 around six months before this retirement. The said me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of another, permits his imagination to work, it may take him to a level, which he may not have imagined at all. The executive powers are required to be exercised on the basis of objective and verifiable material, and not on the basis of surmises, presumptions and imaginations." 12. We have examined the instant case taking into account the similar case as cited above. As brought out in the forgoing paras, the charge-sheet is issued essentially on the premise that the applicant must have accepted certain consideration for having cleared such a heavy amount. This is found to be based on suspicion and premise and not acceptable in the eye of law as brought out in the foregoing paras. Though the applicant may not be immuned from disciplinary proceedings in discharging his duties in his capacity of quasi judicial nature, the basis for initiating the disciplinary proceedings as stated by the respondents that his decision was set aside by the higher authority i.e. ITAT is not acceptable basis for initiating disciplinary proceedings against the applicant as the system would not be able to function if this is done in a routine manner. 13. Keeping in view of the above and also in confor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that the respondent was highly prejudiced on account of such delay in initiation of disciplinary action against him. It is contended that the respondent has retired from service on 30.06.2018 and the charge-sheet was issued six months before his retirement though the Department was aware about passing of the judgment on the day when it was passed. 13. Learned counsel for the respondent has, therefore, submitted that no case for interference is called for in this writ petition and the same is liable to be dismissed. 14. Heard the learned counsel appearing for the parties and also perused the material available on record. 15. At the outset, it is to be clarified that there is no quarrel on the proposition of law that disciplinary proceedings against an officer can very well be initiated in respect of judicial or quasi-judicial functions. It is well settled by various pronouncements of the Hon'ble Supreme Court that an officer, who exercises judicial or quasi-judicial powers, if acted negligently or recklessly, could be proceeded against by way of disciplinary action. It is also true that in every case, disciplinary action cannot be set aside or closed only on account of dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 1990 (Supp) SCC 738 in somewhat similar circumstance, has dismissed the challenge made by the State while observing as under: "4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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