High Court Sees Red At In-Fighting Between ITAT Bar And Bench. Advices Restraint

 

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The following important judgement is available for download at itatonline.org.

Pradeep Kumar Kapoor vs. ITAT (Allahabad High Court)

High Court irked at in-fighting between the Bench and Bar of the ITAT Lucknow Bench and advises restraint, dignity and decorum to be maintained

Two ARs, Mr. S. K. Garg, Advocate and Mr. Pradeep Kumar Kapoor, CA, evidently had a running feud with Mr. Sunil Kumar Yadav, Judicial Member, Lucknow Bench. Apparantly, in the case of Sumit Kumar Rastogi, Garg had made a representation to the President of the ITAT containing "contemptuous and scurrilous allegations" against the Judicial Member. Due to this the Judicial Member recused himself from hearing of those cases which were being represented by Mr. S. K. Garg by passing a speaking order. The Judicial Member sent copies of the proceedings to the Hon'ble President of the ITAT with a request to issue necessary instructions as to how to deal with the situation but the Hon'ble President "instead of issuing necessary instructions in this regard chose to remain silent on the subject". In order to "maintain the dignity of the Institution", the Judicial Member took cognizance of the representation made by S. K. Garg to the Hon'ble President and made a reference to the Allahabad High Court to initiate proceedings for "criminal contempt of court" u/s 15(2) of the Contempt of Court Act, 1971 against S. K. Garg and Pradeep Kumar Kapoor. However, as almost 25% of the appeal pending before the Lucknow Bench are being represented by S. K. Garg, it was felt by the Judicial Member that it would not be fair to keep all the appeals in abeyance as substantial amount of revenue is involved and the Revenue is pressing hard for its fixation. Accordingly the Judicial Member directed the Registry to list all the appeal for hearing. In the case of Omkar Nagreeya Sahkari vs. DCIT (order attached), S. K. Garg filed an application before the Vice-President requesting that the case be transferred from the Bench of the J. M. However, this request was turned down. Thereafter, when the appeal was posted for hearing, Mr. Pradeep Kumar Kapoor appeared for the assessee and the appeal was decided in favour of the assessee. In the order sheet, an entry was made that Kapoor "had no objection to appearing before the Judicial Member". Kapoor filed an application "in his personal capacity" claiming that he had never conveyed his no-objection to the matter being heard by the JM and that he could never have done so in view of the pending criminal contempt proceeding against him. Kapoor requested the Bench to expunge the remark in the order sheet regarding the no-objection of the AR to appear before the JM. On the said application, the JM passed a detailed order dated 18.06.2013 (attached) in which severe strictures were passed against Garg and Kapoor for "attempting to scandalize the court and creating hindrance in the proper judicial functioning of the court" and that it is "unheard in the judicial system that some professional can appear before the judicial forum under protest and argue his case". He held the application as being "highly misconceived, contemptuous and is moved with the intention to browbeat and scandalize the court" and directed that Kapoor's action was "gross abuse of process of law" for which costs of Rs. 5,000 should be imposed. He also made a reference to the President of the ICAI to take necessary action as per law against Kapoor for "professional misconduct" and to take "corrective measures and necessary steps to educate its members to behave with the judicial authorities befitting to their status and should not be engaged in scandalizing the judicial authority/courts". Kapoor filed a Writ Petition in the High Court to challenge the said directions of the Bench. HELD by the High Court:

From the record, it appears that originally, the dispute was between Accountant and Judicial Members of the Tribunal and it was not functioning. So, adjournment was sought by the petitioner, but the same was refused. However, on 06.03.2013, the case of the petitioner was decided in favour of the assessee in his presence. During the course of arguments, the petitioner has tendered his unconditional apology orally as well as in writing. When the petitioner has tendered his unconditional apology, no further adjudication is required. Matter is resolved in the Court. Keeping in mind the ratio laid down in M.P. Special Police Establishment vs. State of M.P 2004 (8) SCC 805 (that a Writ Court can pass appropriate orders to do justice to the parties) the impugned order is modified and the reference made by the Tribunal to the Institute of Chartered Accountant of India is expunged. The cost of Rs.5,000 is also cancelled. Adverse remark against the petitioner, if any, is also expunged. We hope that in future such type of incident will not be repeated. It is in the interest of justice to maintain the dignity and decorum of the judicial system and the Tribunal is an essential part of it.

Note: Incidentally, the Ld. Judge who passed the order (Hon'ble Dr. Satish Chandra) was earlier a Judicial Member of the ITAT. There have been a number of unfortunate cases of friction between the Bar & the Bench as is brought out by the Bar Resolutions of Ahd & Jaipur and the orders in Simoni Gems, Lala Harbhagwan Das, Yoginder Kumar Sood etc

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Regards,

 

Editor,

 

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