Full Judgment Text
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PETITIONER:
INCOME TAX APPELLATE TRIBUNAL THROUGH PRESIDENT
Vs.
RESPONDENT:
K .AGARWAL & ANR.
DATE OF JUDGMENT: 17/11/1998
BENCH:
SUJATA V. MANOHAR, & G.B. PATTANAIK,
ACT:
HEADNOTE:
JUDGMENT:
JUDGMENT
Mrs.Sujata, V.Manohar, J,
------------------------
A public interest Writ Petition No.2350 of 1996 was
filed in the Bombay High Court by the Income-tax Appellate
Tribunal Bar Association through its Secretary challenging
the validity of a letter dated 5.11.1996 purporting to
modify the powers of the President of the Income-tax
Appellate Tribunal regarding posting and transfer of Members
of the Income-tax Appellate Tribunal. The petitioners
contended that they were interstd in fair and impartial
administration of the income-tax law and in upholding the
independent working of the Income-tax. Appellate Tribunal,
the Rule of Law and independence of the income-tax
Judiciary. By an interim order, the High Court restrained
the Under Secretary, Ministry of Law, Government of India
and the Union of India who were respondents 1 and 2 therein
from Interfering with the powers of the President of the
Income-tax Appellate Tribunal to assign work to any Member,
to constitute Benches and to require a Member to sit on any
Bench wherever situate, and for such duration, as he may
deem necessary. This petition was transferred to this
Court. This Court by -its order dated 31.3.1997 conflrmed
the Interim order passed by the High Court. Another similar
petition filed before the High Court of Andhra Pradesh was
also transferred to this Court. Both these petitions are
pending.
In the pending petitions the present application is
being made Dy the Income-tax Appellate Tribunal through its
President. The occasion for making this application has
arisen on account of an order dated 23rd of October, 1997
passed by a Bench of the Income-tax Appel late Tribunal
consisting of two Members, one judicial and one accountant.
The said order was passed in the case of Smt. Neerja Birla
v. Assistant Commi ssioner of Income Tax for the assessment
year 1992-93. As a result of the said order, the assesses
who claimed a benefit amounting to Rs.1,50,00,000 was denied
that benefit by the Tri buna. 1 which decided the appeal in
favour of the revenue.
Thereafter the President of the Tribunal received a
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letter dated 30th of December 1997 from Shrl V.K.Agarwal,
who was then the Law Secretary, Ministry of Law and Justice,
Government of Tncna. Tn the letter, the then Law Secretary,
who is tha first respondent before us, referred to the dec
is Ion of the Tribunal -in the case of Neerja Birla v.
Assistant Commissioner of Income Tax heard and decided by
Shri R.V.Easwar, Judicial Member and Shri M.V.R. Prasad,
Accountant Member sitting together. He observed that the
Judicial Member dictated this judgment in this matter some
time in August, 1997 and dul y corrected and signed it.
However, a contrary order dated 23rd October, i 997 was
pronounced by the Accountant Member which was signed by both
the Members. Copies of both the "orders" were enclosed.
The first respondent then went on to say, "...........Thus
the two orders have taken a contradicting stand. The
aforesaid circumstances disclose judicial impropriety of
highest degree. It is intriguing as to how two
contradicting orders got dictated in the same matter by the
two Members, while one order is by the Judicial Member, the
other is by the Accountant Member and signed by both. You
may like to enquire into the matter and send a report to the
Government within 10 days from the date of the receipt of
this letter. You may also tiKe to suggest the action that
may be taken in the matter and the Members agai nst whom it
may be taken. Further, while submitting the report,, a copy
of the ’file order sheet’ indicating the name of the Menber
to whom the case was allotted for writing the judgment may
also please be sent to the Government."
On receipt of this letter, the appi icant addressed
a letter dated 7th of January, 1988 to both the Members of
the said Bench enclosing a copy of the letter he had
received from the f-irst respondent, and requesting them to
send their comments. Both the Members have separatel y sent
their replies to the applicant pointing out that the only
order which was passed In the said case is the order dated
23rd of October, 1997 which has been signed by both the
Members constituting the Bench on 23.10.1997. The Judicial
Member has pointed out. that after hearing the above case,
he had prepared a draft order which was in favour of the
assessee. When he sent the draft to the Accountant Member,
the Accountant Member expressed n-is reservations on the
views expressed in the draft order. Thereafter, both the
Members met and discussed the issues involved. At the end
of the discussion, the Judicial Member agreed with the view
taken by the Accountant Member and requested the Accountant
Member to prepare an order on those lines. The Accountant
Member thereafter sent a draft order signed by him to the
Judicial Member. The Judicial Member fully agreed with the
draft order sent by the Accountant Member, put his signature
on the draft order and the final order dated 23rd of October
1997 was issued with ooth the signatures. Both have stated
that there are no two orders. Tne so-called first order was
only a draft prepared by the Judicial Member which was not
agreed to by the Accountant Member and ultimateiy after
discussion a new draft order was prepared by the accountant
Member which is signed by both the Members on 23rd October,
1997. This was the only order which was issued and copies
were sent to the assessee as well as to the department.
Both the Members also expressed surprise and distress at a
confidential document like a draft judicial order reaching
the first respondent.
Before the appl-icant could send any reply to the
first respondent after ascertaining the views of the
concerned Members, on 3rd of February, 1998, the first
respondent wrote another letter to the applicant which 1s as
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follows:
"Please refer to my D.O. letter of even No.
dated 30.12.1997 regarding the case of Smt. Neerja
Biria Vs. Asstt. Commr. Bombay, disposed of by a
bench consisting of Shri R.V. Easwar, JM and Shri
M.V.R. Prasad, AM.
The matter involved two contradicting orders
being dictated in the same matter by the same
members constituting the bench. You were reauested
to reply within 10 days of the receipt of the
letter. In spite of this, I have not received any
report from you in the matter even after a month.
You would appreciate that as President of
the Tribunal you have the responsibility to ensure
that the judicial functions of the Tribunal are
discharged by its members properly and in a manner
conducive to instilling confidence in the minds of
the taxpayers. The irregularity pointed out in my
letter relates to a Bench which is functioning at
Mumbal, where you, as the head of the Tribunal, have
your regular headquarters. Under the circumstances.
silence on your part may invits adverse inferences
in the metter.
It is threfore reauested that your report in
the matter may be sent to the Government without
further delay and in any case not later than 6th
February, 1998. in case no report -is received from
you by that date, it will be presumed that you have
nothing to say "in the matter and Government will be
constrained to taKe such action in the matter as may
be deemed f-tt accordi ng to law.
This may please be accorded TOP PRIORITY.
With kind regards,
Yours faithfully,
Sd/-
(Dr. V.K. Agarwal)
Shri T.V. Rajagopala Rao,
Presdent, ITAT,
101, Old DGO Bidg., M.K. Marg,
Mumbai - 400 020. "
The appilicant replied to this letter by his letter
of 6th of February, 1998 In which he pointed out that there
was no impropriety in the passing of the order by the
Members of the Income-tax Appellate Tribunal -in the matter
of Neerja Biria v. Assistant Commissioner of Income-tax.
He went on to state that the appliant’s letter amounted to
gross interference in the judicial functioning of the
Tribunal, and he had no authority to do so. The applicant
also stated that the contents of the first respondent’s
letter pertaining to himself smacked of vindictiveness. The
applicant has viewed the letters as serious interference
with the administration of justice particularly in the
context of the pending petitions. Thereafter the present
application has been filed.
A.K. Sonik, Deputy Secretary in the Department, of
Legal Affairs, Ministry of Law and Justice has also been
made a party-respondent in this application because of the
letter dated 29th of December, 1997 received from the Deputy
Secretary just before the letter from the first respondent
dated 30th December, 1997. In the letter of 29th of
December, 1997, the applicant was told that on a perusal of
the summary statement showing institution, disposal and
pendency of appeals before the Tribunal during the month of
October, 1997 it appears that disposal has considerably gone
down during the month of October, 1997 and the appi -icant
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should look into the matter and send a report on the reasons
for this. According to the appi -icant the disposals were
within the norms, but were less than the previous month.
And the letter was merely to intimidate him. The second
respondent has, in his affidavit, stated that this letter
was issued on the instructions of the first respondent and
the letter was handleed by the first respondent directly.
IN view of the statements made in his affidavit by the
second respondent, the applicant has not pressed the
application against the second respondent.
In the application, the applicant has requested this
court to issue a show cause notice to the first respondent
why action should not be taken against him in contempt,
inter alia, for interfering with judicial functioning of the
Tribunal. He has also prayed for a direction to the first
respondent not to interfere in any manner with the
independent judicial functioning of the Income-tax appellate
Tribunal. On the basis of the application, this Court
issued a suo motu contempt notice to both the respondents.
Since the application is not being pressed against the
second respondent in view of his explanation for the letter
of 29th of December, 1997, we have to examine the conduct of
the first respondent who was, at the material time, the Law
Secretary in the Ministry of Law and Justice.
Undoubtedly, in the application before us it was
also contended that the two letters can be looked upon as
interference with the interim orders of this Court dated
31.3.1997 and 9.5.1997 in the pending petitions. This would
then amount to civil contempt. But the basic charge is
interference with the judicial functioning of the Tribunal.
The prayer in this petition was amended after is was filed
to make it clear that the grievance related to interference
with administration of justice. The respondents at their
request were given sufficient time to reply to the charge of
criminal contempt. There can, therefore, be no grievance on
this score.
Before examining the conduct of the First
respondent. we would like to deal wi th the technical
objections which were raised before us on behalf of the
first respondent. The first respondent had initially
contended that the income-tax Appellate Tribunal was not a
court, and was also not a court subordinate to the Supreme
Court. Hence the Supreme Court had no Jurisdiction to issue
a suo motu notice of contempt in respect of a matter
pertaining to the Income-tax Appellate Tribunal. However,
subseauently, learned senior counsel for the first
respondent conceded that the Income-tax Appellate Tribunal
did perform judicial functions and was a court subordinate
to the H^gh Court. Hence, there is no need to examine any
further, the contention that the said Tribunal is not a
court.
Article 129 of the Constitution provides that the
Supreme Court shall be a Court of Record and shall have all
the powers of such a court including the power to punish for
contempt of itself. This Article has come up for
consideration on numerous occasions. This Court has
consistently held that the Supreme Court has power under
this Article to punish, not merely for contemut of itself,
but also for contempt of all court and Tribunals subordinate
to it. In the case of Delhi Judicial Service Association,
Tis Hazari Court, Delhi v. State of Gujarat and Ore.
([1991] 3 SCR 936), this Court examined at length the power
of this Court under Article ’129 to punish for contempt.
This Court first examined the Jurisdiction of the Supreme
Court and held, (at page 970) "There is. therefore. no
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room for any doubt that this Court has wide power to
interfere and correct the Judgment and orders passed by any
court or Tribunal in the country. In addition to the appel
-late power the Court has special residuary power to
entertain appear against any order of any court in the
country. The plenary jurisdiction of this court to grant
leave and hear appeals against any order of a court or
Tribunal, confers power of judicial superintendence over all
the courts and Tribunals in the territory of India including
subordinate courts of Magistrate and District Judge. This
Court has, therefore, supervisory jurisdiction over all
courts in India." Examining the powers of a court, of
record, it came to the conclusion tnat a court of record has
inherent power to punish for contempt of at 1 courts and
tribunals subordinate to it in order to protect these
subordinate courts and tribunals. This power to protect is
founded on the inherent power of a court of record to
correct the judicial orders of subordinate courts. This
Court further observed, (pages 976-977, 979.) "The Suprerne
Court being a court of record under Article 129 and having
wide power of judicial supervision over all the courts in
the country, must possess ana exercise similar jurisdiction
and power as the High Courts had prior to contempt
legislation in 1926. Inherent powers of a superior court of
record have remained unaffected even after codification of
contempt law....... Article 129 declares the Supreme Court
a court of record and it further provides that the Supreme
Court shall have all the powers of such a court including
the power to punish for contempt for itself. The expression
used In Article 129 is not restrictive, instead it is
extensive in nature. If the Framers of the Constitution
intended that the Supreme Court shall have power to punish
for contempt of itself only, there was no necessity for
inserting the expression "including the power of punish for
contempt of -itself". The Article confers power on the
Supreme Court to punish for contempt of itself and in
addition, it confers some additional power relating to
contempt as would appear from the expression "including".
TUe expression "inc1uing" has been -interpreted by courts
to extend and widen the scope of the power. The plain
language of the Article clearly indicates that this Court as
a court of record has power to punish for contempt of Itself
and also something else which could fall within the inherent
jurisdiction of a court of record. In interpreting the
Constitution, it is not permissible to adopt a construction
which would render any expression superfluous or redundant.
The courts ought not to accept any such construction. While
construing Article 129, it is not permissible to ignore the
significance and impact of the inclusive power conferred on
the Supreme Court. Since, the Supreme Court is designed by
the Constitution as a court of record and as the Founding
Fathers were aware that a superior court of record had
inherent power to indict a person for the contempt of itself
as well as of courts inferior to it, the expression
"including" was deliberately inserted in the Article.
Article 129 recognised the existing inherent power of a
cor the contempt of inferior courts".
This view was reiterated and reaffirmed in the case
of In re: Vinay Chandra Mishra ([1995] 2 SCC 564) where
this Court affirmed the decision in Delhi Judicial Service
Association, Tis Hazari Court, Delhi v. State of Gujarat
and Ors. (Supra). After quoting extensively from the said
judgment this Court held that since this Court has the power
of judicial superintendence and control over all the courts
and Tribunals functioning in the country, it has a
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corresponding duty to protect and safeguard the interests of
inferior courts to ensure that the flow of the stream of
justice in the courts remains unsullied by any interference
or attack from any quarter. The amplitude of the power of
this Court can not oe curtailed by a law made by the Central
or a State Legislature. This Court’s Jurisdiction and power
to take action for contempt of subordinate courts is its
inherent juriediction, and is protected under Misra has been
partially set aside in Supreme Court Bar Association v.
Union of India & Anr. ([1998] 4 SCC 409) on the question of
power to suspend an advocate’s licence under contempt
jurisdiction, this part of its basic reasoning is
unaffected. In fact it is reaffirmed. There can,
therefore, be no doubt that this Court has jurisdiction to
punish for contempt of the Income Tax Appellate Tribunal.
It was also submitted before us by learned senior
counsel for the first respondent that although this Court
may have jurisdiction to punish for contempt, that
jurisdiction should not be exercised in the present case.
The appropriate authority to take action would be the High
Court. We do not see much force in this submission. The
Income Tax Appellate Tribunal, although It may have Benches
in different parts of the country, is a national Tribunal
and its functioning affects the entire country and all its
Benches. Appeals also lie ultimately to this Court from the
decisions and References made by the Tribunal, The mere fact
that by this Court taking suo motu cognizance of the
contempt, the first respondent would not be able to appeal
to any other court, cannot be a ground for not exercising
the power to punish for contempt of a national Tribunal.
In the present case the President of the Tribunal
has sought directions and orders from this Court and has
placed all relevant information concerning the conduct of
the first respondent before us, on the basis of which this
Court has, suo motu, issued notice. Section 15 of contempt
of Courts Act which deals with cognizance of criminal
contempt, also prescribes that the Supreme Court or the High
Court may take action on its own motion. Rule 3(a) of the
Supreme Court Rules regulating proceedings for contempt of
the Supreme Court, similarly provides for the court taking
action suo motu. In the cass of Supreme Court Bar
Association v. Union of India and Anr. (1998 (4) SCC 409),
after reiterating the posit-ion that Article 129 vests the
Supreme Court with power to punish not only for contempt for
itself but also contains the -inherent jurisd-iction of the
court to punish for contempt of suborch nate courts and
Tribunals In order to prevent interference in the due
administration of Justice, this Court also clarified the
position of a party which brings the contumaci ous conduct
of the contemner to the notice of the court. It said (page
429) that the party which brings such conduct to the notice
of the court, whether a private person or the subordinate
court, is only an informant and does not have the status of
a litigant in the contempt of court case. The case of
contempt is not stricto seneu a cause or a matterr
between the parties, inter se. It is a matter between the
court and the contemner.
Whenever an Act adversely affects the aamT-istration
of justice or tends to impede its course, or shake public
confidence in a judicial institution, the power can be
exercised to uphold the dignity of the court of law and
protect its proper functioning. It is in the light of these
principles that one has to examine Section 2 (c) of the
Contempt of Courts Act, 1971. Section 2(c) is as follows:-
Section 2(c): "Criminal contempt " means
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the publication (whether by words,
spoken or written, or by signs, or by
visible representations, or otherwise )
of any matter or the doing of any other
act whatsoever which -
( i ) scandalises or tends to scandal i se, or
lowers or tends to lower the authority of any court;
or
(ii) prejudices, or interferes or tends to interfere
with, the due course of any judicial proceeding ; or
(iii) -interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration
of justice in any other manner".
The et scandalises or tends to scandalise or lowers
or tends to lower the authority of any court [Section
2(c)(i)] or interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of
justice in any manner [Section 2(c)(iii)]. Therefore, any
act which tends to interfere with the administration of
Justice or tends to lower the authority of any court can be
punished with contempt.
In the present case the President of the Income Tax
Appellate Tribunal has considered the letters of 30th of
December, 1997 and 3rd of February, 1998 of the first
respondent as interference with the Judicial decision-making
process of the Tribunal. The concerned Members of the
Tribunal from whom the President invited comments, a1so
looked upon the letter of 30th December, 1997 as gross
interference in the judicial discharge of their duties; and
they were justified in so viewing the letter. The first
respondent had jumped to the conclusion that the Judicial
Member had issued two contradictory orders or the Tribunal
had issued two contradictory orders, and had demanded action
against erring members. Coming as it did from a senior
officer holding the rank of Law Secretary, the applicant was
justified in taking a serious view of the first respondent’s
conduct.
Learned senior counsel for the first respondent then
contended that the two letters were written after the should
not be construed as interference with judicial
decision-making. This contention is without any merit. It is
quite clear that by writing the two letters the first
respondent was questioning the judicial decision arrived at
by the Tribunal. The first respondent had commented upon the
two so-called "orders" and had said that the so-called
contradictory orders disclosed judicial impropriety of the
highest degree. He had demanded action against the Members
of the Tribunal. Questioning of a decision given in a
particular case, or the conduct of a Member of the Tribunal
in deciding a case by the Law Secretary who has thee power
to write confidential reports of the Tribunal Members, is
bound to be perceived by the Members as an attempt to affect
their decision making. It is a clear threat to their
independent functioning. The letter also tends to undermine
confidence in the judicial functioning of the Tribunal.
In re Hira Lal Dixit and two Ors. (1955 (1) SCR
677), this Court observed that it was not necessary that
there should be an actual interference with the course of
administration of justice. It is enough if the offending
act or publication tends in any way to so interfere. If
there are insinuations made which are derogatory to the
di’gnity of the court and are calculated to undermine the
confidence of the people In the integrity of the Judges, the
conduct would amount to contempt. In the case of C.K.
Dapntary ana ors. v. O.P. Gupta and Ors. (1971 Supp.
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SCR 76) this Court negatived the contention that once the
case 1s decided, even If the judgment is severely and even
unfairly criticised, it should not be treated as contempt.
The Court said, "We are unable to agree .,...,.. that a
scurrilous attack on a Judge in respect of a judgment or
past conduct has no adverse affect on the due administration
of justice. This sort of attack in a county like ours has
the inevitable effect of undermining the confidence of the
public in te judiciary. If confidence in the judiciary
goes, the due administration of justice definitely suffers"
(page 97).
Our attention was drawn to Section 3 of the Contempt of
Courts Act, 1971 which excludes innocent publications as
specified in that Section, published when the civil or
criminal proceeding concerned is not pending, from the realm
of contempt. The present case, however, deals with acts
which lower the author-ity of a court and tend to interfere
with the administration of justice. Sect-ion 3 has no
application in the present case. ^he letters of the first
respondent insinuate a d-ishonest conduct on the part of the
two mennbe.rs, oresuftiably because the view expressed by
the Judicial Member in the first alleged order is changed by
him in favour of the revenue when he concurs with the order
which was actually pronounced. This kind of an attack based
on access to a confidential draft exchanged between the
Members of the Bench is bound to affect free exchange of
Ideas between the two Members wno have to judicially decode
a case. It "is a clear obstruction to proper
decision-making and to proper administration of justice.
In the case of Delhi Judicial Service Association,
Tis Hazari Court, Delhi etc. etc. v. State of Gnjarat and
Ors. etc. etc. (Supra) it has been he}d that the defini
-tion of criminal contempt is wide enough to include any act
by a person which would tend to interfere with justice or
which would lower the authority of a court. The public have
a major stake in effective and orderly administration of
justice. A letter from a high officer such as the Law
Secretary which questions the bona fides of the Members of
the Tribunal in deciding a case and asks them to explain the
judicial order which they have passed, unfairly tampers with
the judicial process and interferes with judicial
decision-making.
The first respondent has tried to justi fy his
conduct by saying that the letters were written by him bona
fide in the exercise of his right to control the functioning
of the Tribunal. He has pointed out that the Tribunal
functions under the Department of Law and Justice. The
Rules of Recruitment prov-ide that the Law Secretary should
be a member of the Selection Board which selects the
Members of the Tribunal. The confidential reports of the
Tribunal’s Members are written by the Law Secretary. The
Ministry of Law and Justice, Department of Legal Affairs,
exercises disciplinary powers over the Members of the
Tribunal. The Allocation of Business Rules of the
Government of India place the Income Tax Appellate Tribunal
under the Department of Legal Affairs, Ministry of Law and
Justice. He contends that the two letters were written by
him in a legitimate exercise of his power of supervision and
control: and these could not be construed as contempt. In
this connection, the first respondent has placed reliance
upon a decision of this Court in Rizwan-UI-Hasan and Anr.
v. The State of Uttar Pradesh (1953 SCR 581) where the
Court said that since the alleged contemner had the duty to
supervise the work of the trying Magistrate, the alleged
contemner was only doing his duty as a superior officer and
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this would not amount to contempt. In the present case,
however, the Rules of A1 location of Business as also the
supervisory control of the Department of Legal Affairs over
the Income Tax Appellate Tribunal, is administrative
supervision and control. It does not extend to control ting
or duestloning judicial decisions of the Appellate Tribunal.
The entire conduct of the first respondent leaves
much to be desired. He claims to have received a
pseudonymous complaint dated 15th of November, 1997 from one
K. Prassd with which copies of "two separate and
conflicting orders passed by the ITAT Mumbai Bench A, in ITA
No.9013/Bonn./1995" were enclosed. The pseudonymous
complaint stated that while one order was dictated and
signed by the Judicial Member in August, 1997, the other
order was per pro the Accountant Member and signed by both.
The letter says, "The aforesaid circumstances disclose
judicial impropriety of the highest degree". On ths basis
of this pseudonymous complaint, and the receipt of copies of
two separate orders, the first respondent claims to have
written the letter of 30th of December, 1997. Before doing
so, he did not check whether there was any person of the
name K. Prasad existing at the address given in the letter
and whether what had been stated in the letter had any
factual basis. He did not even check whether aoth the
orders or any of them had been pronounced by the Bench or
not. He should have been aware of an Office Memorandum
dated 29th of September, 1992 issued by the Department of
Personnel and Training, Government of India to all
departments, giving instructions about dealing with
anonymous and pseudonymous complaints. The Memorandum
states that before taking cognizance of such complaints the
Chief Vigilance Officer of the Department or organisation
concerned should obtain specific orders from the Head of the
Department. A copy of all such complaints shal 1 fi rst be
made available to the officer concerned for his comments,
and only thereafter further action should be taken.
Precaution should be taken to take into custody all relevant
documents. In the present case the first respondent did not
send a copy of the complaint which he had received to the
President of the Tribunal for investigation. Although he
was the Law Secretary, he seems to be unaware of Rules 34
and 35 of the Income Tax Appellate Tribunal Rules of 1961
which regulate the procedure of the Appellate Tribunal.
Under Rule 34 which deals with final orders to be passed, it
is provided as follows:-
"34(1): The order of the Bench shal 1 be in writing
and shall be signed and dated by the Members
constituting it."
Rule 35 provides as follows:
"35: The Tribunal shall, after the order is signed,
cause it to be communicated to the assesses and to
the Commissioner."
Therefore, unless the order of a Bench i s signed by
all Members constituting it and is dated, it is not an order
of the Appellate Tribunal. Secondly, this signed and dated
order has to be communicated both to the assessee and to the
Commissioner. The first respondent has noted in the letter
of 30th December 1997, that the first so-called "order" only
bears the signature one Member. It is not signed by the
second Member, nor does it bear any date. He ought to have
verified whether this so called first "order" had been
communicated to the assessee or to the Commissioner. Had he
done so, so he would have found that such an "order" does
not exist and no such order has been communicated either to
the assessee or to the Commissioner. Had he been aware of
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Rule 34, he would have realised that if the copies which
werre sent to him were authentic, then the only order which
could be construed as an order of the Tribunal was the
second order which was signed by both the Members and bore a
datge. Had he ascertained from the Commissioner of Income
Tax or the assessee which order had been communicated to
them, he would have found that the only order which had been
communicated was the order signed by both the Members and
bearing the date 23rd of October, 1997. Therefore, he
should have realised that there could not possibly have been
any misunderstanding about the order passed. What appears
from the letter is that the first respondent seems have
taken umbrage at the fact that the judicial Member, whose
initial draft order was in favour of the assessee, was
changed and the judicial Member, after discussion with the
Accountant Member, ultimately agreed with the view taken by
the Accountant Member and decided the appeal in favour of
the Revenue. Certainly, the language of the letter of 30th
of December, 1997 is wholly unwarranted. Curiously, the
statement fn the letter that, the aforesaid ci rcumstances
disclose judicial impropriety of highest degree is
reminiscent of the language used in the pseudonymous
complaint. Instead of even waiting for an explanation, ho
has straightway asked the President to enquire into the
matter and send a report to the Government, and that too
peremptorily within ten days. All this is wholly unbecoming
of a person holding the rank of tha Law Secretary.
Moreover, without waiting for some time for a response from
the President, immediately on the lapse of a month, he wrote
a second letter of 3rd of February, 1998 in an equally
peremptory fashion pointing out that although the President
was requested to reply within ten days, he had not received
any report even after a month! He admonished the President,
pointing out that the President had the responsibility to
ensure that the judicial functions are discharged properly,
he referred to the so called irregularity, and even went to
the extent of saying that silence on the part of the
President may invite adverse inferences in the matter! He
demanded a report from the President not later than 6th of
February, 1998, when his letter was dated 3rd of February,
1998. The entire tone of the letter is highly unwarranted,
offensive and tends to undermine the dignity of the post of
the President of the Appellate Tribunal. It is unbecoming
of the Law Secretary to issue such "commands" to the
President of the Income Tax Appellate Tribunal ordering him
to send reports within a few days and threatening that
adverse inferences would be drawn if the report is not so
sent - and all this without even bothering to check whather
the complaint received by him was a genuine complaint or
not!
The first respondent, although he received the
pseudonymous complaint of 15th of November, 1997, seems to
have written a letter to the so-called sender of the
complaint only on 12th of January, 1998, and that too asking
only for a confirmation whether the complaint was made by
that person. When he wrote the letter of 30th December,
1997, he had not even checked the veracity of the complaint.
Thereafter, although the first respondent had not received
any response to his letter of 12th of January, 1993, he did
not hesitate to address the letter of 3rd of February, 1998
to the President of the Tribunal.
In our view this kind of conduct and that, too on
the part of the Law Secretary, who is expected to maintain
the Independence of the Income Tax Appellate Tribunal and
not interfere with its judicial functioning, amounts to
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gross contempt of court. It is a deliberate attempt on his
part to question the judicial functioning of the Tribunal
coming as it does from a person of his rank. It is rightly
peresived by the President as well as the two concerned
Members of the Tribunal as a threat to their independent
funct-ioning in the course of deciding appeals coming up
before them.
The first respondent has offered his apology to us.
However, looking to all the circumstances of the present
case we cannot accept the apology offered. He has travelled
far beyond exercising administrative control over the
Tribunal. He has tried to influence or question the
decision-making process of the Tribunal. Anapology, in
these circumstances, cannot be accepted. We, therefore,
hold the first respondent guilty of contempt of court.
Looking, however, to the fact that he has since retired as
the Law Secretary and -is not in a position to inflict
further damage, the ends of justice will be met if he is
fined a sum of Rs.2,000/- as punishment for contempt. We
order accordingly.