ITAT rejects recall
application filed by CA in ‘personal’ capacity; directs ICAI to act suitably
for his misconduct
Brief of the case:
Held
• Instant application is filed by the CA in his individual capacity and
not on behalf of the assessee after disposal of assessee's appeal.
• Once the appeal is disposed, the power conferred upon the
professionals or the Authorized Representative by virtue of the Power of
Attorney by the assessee, comes to an end.
• The professionals or the Authorized Representatives do not have any
locus standi to file any application before the Tribunal in his individual
capacity because the Tribunal is not created to redress the grievances of the
professionals.
• Its function is to adjudicate the disputes between the assessee and
the Department.
• The appeal was allowed in favour of the assessee. The assessee had no
grievance against the order passed by the Tribunal
• Instant application filed by the CA with an ulterior motive for the
reasons best known to him after 48 days from the hearing, disputing the facts
recorded in the order sheet dated 08/02/2013.
• Moreover, there is no provision under the Act which entail the
professionals to move any application in their individual capacity without
obtaining the consent of the assessees before the Tribunal after disposal of
the appeal.
• After disposal of the appeal, an application can only be filed on
behalf of the assesse under section 254(2) of the Act for seeking rectification
in the order passed under 254 (1) of the Income Tax Act.
• But there is no provision under the Act in which an application can be
filed by any Advocate/Chartered Accountant/ Authorised Representative in his
individual capacity for seeking rectification in the proceedings of the
hearing, without the consent of the assessee.
• In fact it is not only misuse of process of the law but it is sear
abuse of process of law.
• No professional has any right to invoke the judicial machinery for his
own interest without any reasons. If he does so it would amount to professional
misconduct on the part of the professional.
• Moreover, to dispute the proceedings of the court, without any cogent
material, is also an attempt to scandalize the court and also to create
hindrance in the proper judicial functioning of the court which cannot be
permitted under any circumstances. If it is allowed to be done, the judicial
system will collapse.
• There is hierarchy in the judicial system.
• If someone is aggrieved with the judicial order passed by any judicial
forum, he may approach the higher forum against that order and get the
redressal of his grievance but he has no right to make an attempt to scandalize
the court by moving such a frivolous application.
• Appeal was disposed of vide order dated 06/03/2013 and order was
pronounced in the open court allowing the appeal of the assessee.
• The factum of dictation of order in the open court is also admitted by
CA
• CA has not furnished any explanation as to why he remained silent with
regard to the facts recorded in the order sheet dated 08/02/2013 till the
disposal of the appeal or upto 28/03/2013 when the present application was
filed.
• CA has not filed the affidavit in support of his contentions despite
the repeated directions of the Tribunal.
• Whenever the proceedings of the court are disputed, it should be
supported by an affidavit as there is presumption under section 114(e) of the
Indian Evidence Act that judicial act have been regularly performed.
• Since the facts recorded in the order sheet have not been controverted
by filing an affidavit, the judicial proceedings recorded on 08/02/2013 are
correct in view of the provisions of section 114(e) of the Indian Evidence Act,
1872 and the contentions raised in the application are highly misconceived,
wrong and contemptuous.
• Therefore, instant application is highly misconceived, contemptuous
and is moved with the intention to browbeat and scandalize the court.
• Since the action of CA is gross abuse of process of law, application
dismissed with the cost of Rs 5,000/- to be recovered as arrear of income tax
from CA as this application was filed in his individual capacity and not on
behalf of the assessee.
• This tough stand is being taken only to maintain the dignity and
decorum of the institution and justice delivery system so that it may not be
misused by any professional to settle their personal score. If they have any
grievance against any judicial forum they may approach the higher forum instead
of scandalizing the concerned court/judicial body.
• Reference made to the President of Institute of Chartered Accountants
with a request to take necessary action as per law against CA for his
professional misconduct and also 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.
• Accordingly, the Registry is directed to send the copy of this order
to the President - ICAI, Institute of Chartered Accountants of India, ICAI
Bhawan, Indraprastha Marg, New Delhi-110 002 for necessary action in this
regard.
Court Order:
IN THE ITAT LUCKNOW BENCH 'SMC'
Omkar Nagreeya Sahkari Bank Ltd.
vs.
Deputy Commissioner of Income-tax- I, Kanpur
SUNIL KUMAR YADAV, JUDICIAL MEMBER
IT APPEAL NO. 572 (LUCK.) OF 2012
[ASSESSMENT YEAR 2005-06]
JUNE 18, 2013
Sunil
Kumar Yadav, Judicial Member - This appeal was disposed of by the
Tribunal vide order dated 06/03/2013 against which assessee has no grievance as
the appeal was allowed in his favour but Shri Pradeep Kumar Kapoor, C. A.,
authorized representative of the assessee, hasfiled an application on
28/03/2013 in his individual capacity after the disposal of the appeal with a
request to recall or expunge the order sheet entry dated 08/02/2013 or issue
directions for modification of the same so that the same may be brought in
conformity with the facts of the case. In this application the assessee has
made a reference of adjournment application dated 17/12/2012 seeking
adjournment on the ground that Judicial Member has recused himself from hearing
the appeal which are being represented by Shri S. K. Garg, Advocate and has
submitted that without any communication either to the assessee or to the
undersigned counsel with reference to the petition dated 17/12/2012, the matter
was listed for hearing for 05/02/2013 and on the same premise the adjournment
was sought by the assessee. The appeal was again listed for hearing on
08/02/2013 despite repeated objection to the fixing of appeal for hearing before
the Bench of Judicial Member. It was further contended that despite the
objection raised by the learned Counsel for the assessee, the case was heard
and some order was dictated in the open court which the undersigned counsel
could not fully comprehend at that time.
2. It was
further submitted through this application that on the following working day
and also thereafter, the undersigned counsel was required by the Bench Clerk to
sign the order sheet entry dated 08/02/2013. Later on the learned counsel moved
an application for issuing the certified copy of the order sheet entry dated
08/02/2013. On 08/03/2013 the learned counsel got an opportunity to peruse the
order sheet entry and on that date he declined to sign the said order sheet
entry as the same was contrary to what had transpired at the time of hearing on
08/02/2013. On 08/03/2013, in order to convey his objection to the said order
sheet entry, the undersigned counsel appeared before the Judicial Member and
expressed his inability in unambiguous terms to sign the order sheet entry
dated 08/02/2013, for the same reason. It was further contended that in order
to put the records straight, the undersigned counsel again submitted a formal
letter on the same day, to the Registry of the Tribunal with a copy forwarded to
Sr. Vice President, Shri G. D. Agarwal, Income Tax Appellate Tribunal (in short
I.T.A.T.) Delhi. Later on, certified copy of the order sheet entry was made
available to the undersigned by the Registry. It was further contended that the
undersigned counsel had never agreed that he had no reservation with the Bench
constituted by the Judicial Member either singly or with Accountant Member. He
further contended that in fact there could not have been any such agreement/assertion
at the part of the undersigned counsel, looking to the additional fact that for
initiating criminal contempt proceedings against the undersigned and his Senior
Colleague Shri S. K. Garg, Advocate, a reference had already been made by the
Judicial Member to the Hon'ble Allahabad High Court which was sub judice there
at that time. It was further prayed that the order sheet entry dated 08/02/2013
be recalled or expunge and to issue necessary directions for modification of
the same so that the same may be brought in conformity with the facts as stated
above. Along with the application, Shri Pradeep Kumar Kapoor, has filed one
letter addressed to Judicial Member and another letter written by Shri S. K.
Garg, Advocate addressed to the Hon'ble President, I.T.A.T.
3. This
application was taken up for consideration on 10/04/2013 and copy of the said application
was given to learned Sr. D.R. for filing reply to the said application.
Accordingly, the hearing was adjourned to 16/04/2013 for disposal of the
application. Vide order dated 10/04/2013 Shri Pradeep Kumar Kapoor, C. A. was
also directed to file an affidavit stating the happening in the court on the
date when the matter was argued by him since he has disputed the facts recorded
in the order sheet on 08/02/2013. On 16/04/2013 adjournment application was
filed on behalf of Shri Pradeep Kumar Kapoor, C.A., and the hearing was
adjourned to 25/04/2013. Again on 21/04/2013 the adjournment was sought on
behalf of Shri Pradeep Kumar Kapoor, C. A. by filing adjournment application
and the hearing was again adjourned to 06/05/2013 with last opportunity for
filing the affidavit in support of the application. On 06/05/2013, Shri Pradeep
Kumar Kapoor, C.A. has filed an affidavit along with the annexures and on
perusal of the affidavit it was noticed that the affidavit was not filed as per
the direction issued vide order dated 10/04/2013. Since Shri Pradeep Kumar
Kapoor, C. A. has disputed the facts recorded in the order sheet, he was again
asked to file the detailed/exhaustive affidavit narrating the entire incident
that took place on the date of hearing. Accordingly hearing was adjourned for
14/05/2013. On 14/05/2013, Shri Pradeep Kumar Kapoor, C.A. did not appear nor
any application for adjournment was filed on his behalf and hearing was adjourned
to 2 P.M. but Shri Pradeep Kumar Kapoor, C. A. did not appear and the argument
of Revenue was heard on the application and their reply to the application was
also taken on record.
4. Vide
order dated 10/04/2013 Shri Pradeep Kumar Kapoor, C.A. was asked to explain
under which section the present application dated nil received by the Registry
on 25/03/2013, after the disposal of the appeal is filed. Shri Pradeep Kumar
Kapoor, C.A. was also asked vide order dated 06/05/2013 to advance his
arguments on the point of maintainability of this application filed by him in
his individual capacity after disposal of the appeal.
5. The
learned Sr. D.R. Smt. Ranu Biswas, while advancing her arguments on this
application, has invited our attention to the order sheet entry dated
08/02/2013 with the submissions thatthough the matter was listed for disposal
of the adjournment application moved on behalf of the assessee on 05/02/2013
but Shri Pradeep Kumar Kapoor, C. A. had agreed to argue the matter after
making a statement that he has received instructions from his client to argue
the case. It was also contended by learned Sr. D.R. that this application was
filed after a gap of 22 days from the pronouncement of the order i.e. 06/03/2013.
This appeal was heard on 08/02/2013 and the proceedings were recorded in the
open court and this application was filed on 28/03/2013 after a gap of 48 days.
Had it been any truth in the application, it would have been filed just after
the conclusion of the hearing. Moreover, Mr. Kapoor has admitted in this application
that some order was dictated by the Bench in the open court at the time of
hearing. Therefore, this application is misconceived and deserves to be
rejected outrightly. The learned Sr. D.R. has also contended that once the
appeal is disposed of, the learned counsel has no lucus standi to move any
application in his individual capacity. Therefore, this application is also not
maintainable.
6. Before
proceeding on merit of this application, I feel it proper to place certain
relevant facts on record in order to understand the real controversy. On
17/12/2012 the learned Counsel for the assessee Shri S. K. Garg, Advocate has
moved an application for transfer of his appeal on the ground that Judicial
Member has recused himself from hearing the cases which are being represented
by Shri S. K. Garg, Advocate vide order sheet entry dated 30th August, 2012 in I.T.A.
No.472/Lkw/2011 and C.O. No.14/Lkw/2012. On receipt of this application, a
judicial order was passed with the direction to place the matter before the
Hon'ble Vice President, Shri G. D. Agarwal, Lucknow Zone for necessary orders
with regard to transfer of this appeal to some other Bench. Accordingly hearing
was adjourned to 21/01/2013. The matter was placed before Hon'ble Vice
President, Shri G. D. Agarwal, Lucknow Zone and the Hon'ble Vice President has turn
down the request of transfer of appeal of Shri S. K. Garg, Advocate vide order
dated 04/01/2013. Consequently, the matter was again listed for hearing before
the SMC on 21/01/2013 but none appeared on behalf of the assessee and the
hearing was adjourned to 05/02/2013 and on 05/02/2013 an application for
adjournment was moved by Shri Pradeep Kumar Kapoor, C. A. on the same ground. Copy
of this application was supplied to the learned Sr. D.R. and the hearing was
adjourned for 08/02/2013 for disposal of the application. On 08/02/2013, Shri
Pradeep Kumar Kapoor, C. A. appeared and agreed to argue the appeal before the
Bench as he has received instructions from his client to argue the case and he
has no reservation with the Bench. Accordingly, the arguments of the Shri
Pradeep Kumar Kapoor, C. A. and Smt. Ranu Biswas, Sr. D.R. were heard and order
was reserved. The proceedings of hearing of 08/02/2013 was dictated in the open
court in the presence of Shri Pradeep Kumar Kapoor, C. A. and Smt. Ranu Biswas,
Sr. D.R. Since the controversy has been raised with regard to the contents of
this proceedings, I feel it proper to reproduce the same as under:
Dated 08/02/2013
Present for the assessee : Shri Pradeep Kumar
Kapoor, C. A.
Present for the Revenue : Smt. Ranu Biswas, D.R.
On the last date of hearing i.e. 5.2.2013 the
assessee moved an application for adjournment having relied upon the order of
the Tribunal dated 30.8.2012 passed in ITA No. 472/LKW/2011 and CO
NO.14/LKW/2012. Copy of this application was given to the ld. D.R. The ld. D.R.
strongly opposed the request for adjournment of the appeal. The ld. counsel for
the assessee, Shri. Pradeep Kumar Kapoor, C.A. has now agreed to argue the
appeal before the Bench as he has received instruction from his client
(assessee) to argue the case and he has no reservation with this Bench. The
aforesaid order dated 30.8.2012 in ITA No. 472/LKW/2011 and CO No.l4/LKW/2012,
through which I recused myself from the cases being represented by Shri. S. K.
Garg, Advocate, was passed on receipt of the copy of representation addressed to
the Hon'ble President, ITAT by Shri. S. K. Garg, Advocate. The said order was
passed under the peculiar circumstances. Thereafter cognizance of the
representation was taken and reference for criminal contempt of court against
Shri. S. K. Garg, Advocate and Shri. Pradeep Kumar Kapoor, C.A. was made to the
Hon'ble High Court of Allahabad and the matter is sub judice before the Hon'ble
High Court of Allahabad. Now under the changed circumstances, I have no
reservation in hearing the appeal of any assessee being represented by any
Advocate/C.A. including Shri S. K. Garg, Advocate and Shri Pradeep Kumar
Kapoor, C. A. Decision in this regard is left upon the respective assessee.
Accordingly, the arguments of both the parties to this appeal are heard and the
order is reserved.
Sd/.
(Judicial Member)
7. Thereafter
on 06/03/2013, the order allowing the appeal was pronounced in the open court in
the presence of Shri Pradeep Kumar Kapoor, C. A. and Shri Praveen Kumar, CIT,
D.R. On 06/03/2013, Shri Pradeep Kumar Kapoor, C. A. applied for certified copy
of the proceedings dated 08/02/2013. Consequently, the copy was supplied as per
Rules. Thereafter on 08/03/2013 an application is filed by Shri Pradeep Kumar
Kapoor, C. A. containing therein that he has appeared before the SMC on
08/02/2013 under protest and sent a copy of the same to Shri G. D. Agarwal,
Hon'ble Sr. Vice President, Lucknow Zone sitting at Delhi. The application along
with the report was referred to Shri G. D. Agarwal, Hon'ble Sr. Vice President
and Hon'ble Vice President has disposed of the matter by observing that it is
the judicial matter, let learned Judicial Member do the needful in accordance
with law. Thereafter, Shri Pradeep Kumar Kapoor, C. A. again filed the impugned
application on 28/03/2013 with a request to recall/expunge the order sheet
entry dated 08/02/2013, copy of which was supplied to Sr. D.R. and she has
filed the reply to this application contending therein that after disposal of
the appeal, these type of applications are not at all maintainable.
8. So far
as issue of reclusal of the Judicial Member from hearing of the case of Shri S.
K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. is concerned, I would
like to place certain facts on record in order to understand the real
controversy arisen in this Bench. 9. On filing of copy
of representation made by Shri S. K. Garg, Advocate to the Hon'ble President of
I.T.A.T. in the case of Sumit Kumar Rastogi in I.T.A. No.472/Lkw/2011 and C.O. No.42/Lkw/2012
on 30th August, 2012 containing contemptuous and scurrilous allegations against
the Judicial Member, the Judicial Member recused himself from hearing of those
cases which were being represented by Shri S. K. Garg, Advocate by passing a
speaking order. Copies of the proceedings were duly sent to the Hon'ble
President of the I.T.A.T. 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, has chosen to remain salient on the
subject. In order to maintain the dignity of the Institution, the Judicial
Member took cognizance of the representation made by Shri S. K. Garg, Advocate
to the Hon'ble President, I.T.A.T. and made a reference on 19/10/2012 for
criminal contempt of court u/s 15(2) of the Contempt of Court Act, 1971 against
Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. to the Hon'ble High
Court of Allahabad and consequent thereto the Hon'ble High Court has taken a
cognizance of the same and criminal contempt case against Shri S. K. Garg,
Advocate and Shri Pradeep Kumar Kapoor, C. A. has been registered vide Contempt
No. 310 of 2013 and now the matter is sub judice before the Hon'ble High Court
Allahabad at Lucknow Bench in the case styled as State of U.P. v. Shri
S. K. Garg, Advocate and Another.
10. It was
brought to the notice of Judicial Member in the administrative capacity that
almost 25% of the appeal pending before the I.T.A.T., Lucknow Bench are being
represented by Shri S. K. Garg, Advocate, therefore, it would not be fair to
keep all the appeals in abeyance as substantial amount of revenue is involved
therein and Revenue is pressing hard for its fixation. Having realized these
facts, the Judicial Member, in the administrative capacity, has directed the Registry
to list all the appeal for hearing vide order dated 15/10/2012. Thereafter, in
the instant case which was listed for hearing on 08/02/2013 it was
categorically observed by the Tribunal that the reclusal of the Judicial Member
from hearing the case being represented by Shri S. K. Garg, Advocate was made
in a peculiar circumstances. Later on a cognizance of the representation was
taken and reference for criminal contempt of court was made against Shri S. K.
Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. to the Hon'ble High Court
of Allahabad and the matter is subjudice before the Hon'ble High Court,
therefore, the Judicial Member has no reservation in hearing the appeals of any
assessee being represented by any Advocate/Chartered Accountant including Shri
S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. Thereafter, the
appeal was argued by Shri Pradeep Kumar Kapoor, C. A. and the appeal was
disposed of vide order dated 16/04/2013. The order passed by the Judicial Member
in SMC has not been challenged by the assessee. Therefore, once it has been
made clear by passing a judicial order vide order dated 08/02/103 in the
instant case that the Judicial Member has no reservation in hearing the appeals
of any assessee being represented by Shri S.K. Garg, Advocate or Shri Pradeep
Kumar Kapoor, C. A. after making a reference of criminal contempt of court
against Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. to the
Hon'ble High Court, the controversy with regard to the reclusal of Judicial
Member from hearing cases of Shri S. K. Garg, Advocate and Shri Pradeep Kumar
Kapoor, C. A. no longer subsists.
11. It is
pertinent to mention here that I.T.A.T. is creation of Income Tax Act through
section 252 of the Income Tax Act (hereinafter called as "Act") and
u/s 252 the Central Government shall constitute an Appellate Tribunal to
adjudicate the issues raised between the assessee and the Income-tax
Department. The professionals either Advocates or Chartered Accountants can be engaged
to prosecute the appeals on behalf of the assessees in a manner in which the assesse
wants. In fact after filing the Power of Attorney, the professionals (Advocate
or CharteredAccountant) will step into the shoes of the assessee and they will represent
the case in a manner beneficial to the assessee. If a particular Advocate or a
Chartered Accountant is not comfortable or has reservation with a particular
judicial forum, it is his sweet will for making a representation before the
said judicial forum but for that reason the judicial forum cannot be forced to
adjourn all the matters for an unlimited period where the stakes of the revenue
are substantially involved. Similar is the position for the assessee also as he
has to take a final decision with regard to the appointment of his advocate or
representative to represent his case before the judicial authority but the
judicial authority cannot be forced to adjourn the hearing on the ground that
advocate engaged by the assessee does not want to appear before the said judicial
authority/forum. The judicial authority, be it may be the Tribunal are
concerned about the material placed before them while adjudicating the issues
involved irrespective of the personalities of the Advocates appearing before
him representing the case of the parties.
12. The
conduct of the Advocates with regard to the representation on behalf of its
clients was examined by the Apex Court in various judgments. In the case of Pandurang
Dattatraya Khandekar v. Bar Council of Maharashtra Bombay & Others 1984
(2) SCC 556, their Lordships have observed that an advocate stands in a loco
parentis towards the litigants. Therefore, he is expected to follow norms of
professional ethics and try to protect the interests of his client in relation
to whom he occupies a position of trust. Counsel's paramount duty is to the
client. The client is entitled to receive disinterested, sincere and honest
treatment. It was further observed that no advocate can take it for granted
that he will appear in the court according to his whim or convenience. It would
be against professional ethics for a lawyer to abstain from the court when the
cause of his client is called for hearing or further proceedings.
13. In the
case of Common Cause A Registration. Society v. Union of India &
Ors. 1994 (5) SCC 557, it was observed that since litigants have a
fundamental right to speedy justice it is essential that cases must proceed
when they appear on board and should not ordinarily be adjourned on account of
the absence of the lawyers unless there are cogent reasons to do so. If cases
get adjourned time and again due to cessation of work by lawyers it will be in
the end result in erosion of faith in the justice delivery system which will
harm the image and dignity of the court as well.
14. Noting
casual and indifferent attitude of some of the lawyers and expecting
improvement in quality of service the Hon'ble Apex court in the case of Sanjiv
Datta, Deputy Secretary, Ministry of Information & Broadcasting, New Delhi
etc. 1995 (3) SCC 619 held as under:
"Of late, we have been coming
across several instances which can only be described as unfortunate both for
the legal profession and the administration of justice. It becomes, therefore,
our duty to bring it to the notice of the members of the profession that it is
in their hand to improve the quality of the service they render both to the
litigant-public and to the courts, and to brighten their image in the society.
Some members of the profession have been adopting perceptibly casual approach
to the practice of the profession as is evident from their absence when the
matters are called out, the filing of incomplete and inaccurate pleadings -
many time even illegible and without personal check and verification, the
nonpayment of court fees and process fees, the failure to remove office
objections, the failure to take steps to serve the parties, et al. They do not
realize the seriousness of these acts and omissions. They not only amount to
the contempt of the court but do positive disservice to the litigants and create
embarrassing situation in the court leading to avoidable unpleasantness and
delay in the disposal of matters. This augurs ill for the health of our judicial
system."
15. In the
case of Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. 1999 (1)
SCC 37, the Hon'ble Apex court has held; "Judicial function cannot and
should not be permitted to be stonewalled by browbeating or bullying
methodology, whether it is by litigants or by counsel. Judicial process must
run its even course unbridled by any boycott call of the Bar or tactics of filibuster
adopted by any member thereof." High Courts are duty bound to insulate
judicial functionaries within their territory from being demoralized due to
such onslaughts by giving full protection to them to discharge their duties
without fear. But unfortunately this case reflects apathy on the part of the
High Court in affording such protection to a judicial functionary who resisted,
through legal means, a pressure strategy slammed on him in open court.
16. Their
Lordships further held in the aforesaid cases that if any counsel does not want
to appear in a particular court, that too for justifiable reasons, professional
decorum and etiquette require him to give up his engagement in that court so
that the party can engage another counsel. But retaining the brief of his
client and at the same time abstaining from appearing in that court, that too
not on any particular day on account of some personal inconvenience of the counsel
but as a permanent feature, is unprofessional as also unbecoming of the status
of an advocate. No court is obliged to adjourn a cause because of the strike
call given by any association of advocates or a decision to boycott the courts
either in general or any particularcourt. It is the solemn duty of every court
to proceed with the judicial business during court hours. No court should yield
to pressure tactics or boycott calls or any kind of browbeating.
17. In the
case of Lt. Col. S. J. Chaudhary v. State (Delhi Admn) 1984 (1)
SCC 722, it was held that it is the duty of every Advocate who accepts a brief
to attend the trial and such duty cannot be overstressed. It was further
reminded that having accepted the brief, he will be committing a breach of his
professional duty, if he so fails to attend. A lawyer is under obligation to do
nothing that shall detract from the dignity of the court of which he is himself
a sworn officer and assistant. He should at all times pay differential respect
to the judge and scrupulously observe the decorum of the courtroom.
18. In the
case of Ramon Services Pvt. Ltd. v. Subhash Kapoor and Others,
Appeal No. 6385 of 2000, vide judgment dated 14/11/2000, their Lordships of
Apex Court have made a reference to Warvelle's Legal Ethics at page 182 where
it has been stated "of course, it is not a unilateral affair. There is a
reciprocal duty for the court also to be courteous to the members of the Bar
and to make every endeavour for maintaining and protecting the respect which
members of the Bar are entitled to have from their clients as well as from the
litigant public. Both the Bench and the Bar are the two inextricable wings of
the judicial forum and therefore the aforesaid mutual respect is the sine qua
non for the efficient functioning of the solemn work carried on in courts of law.
But that does not mean that any advocate or a group of them can boycott the
courts or any particular court and ask the court to desist from discharging
judicial functions. At any rate, no advocate can ask the court to avoid a case
on the ground that he does not want to appear in that court."
19. In the
case of Ramon Services Pvt. Ltd. (supra), their Lordships of Apex
Court having examined various judgments on this aspect have concluded as under:
"Some courts might have
conducted the cases even during the strike or boycott periods or adjourned due
to helplessness for not being in a position to decide the lis in the absence of
the counsel but majority of the courts in the country have been impliedly
sympathisers by not rising to the occasion by taking positive stand for the
preservation of the high traditions of law and for continued "restoration
of the confidence of the common man in the institution of judiciary. It is not
too late even now for the courts in the country to rise from the slumber and perform
their duties without fear or favour particularly after the judgment of this
Court in Mahabir Singh's case(supra). Inaction will surely
contribute to the erosion of ethics and values in the legal profession. The
defaulting courts may also be contributory to the contempt of this Court."
20. So far
as the merit of this application is concerned, this application is filed by
Shri Pradeep Kumar Kapoor, C. A. in his individual capacity and not on behalf
of the assessee as stated by him during the course of hearing on 06/05/2013 and
ignorance shown by the assesse through his letter dated 06/05/2013. Shri
Pradeep Kumar Kapoor, C. A. was also asked to specify under which section he
has filed this application but he could not furnish any specific reply in this regard.
Under section 255(2) of the Act, the I.T.A.T. is created to adjudicate the issue
between the assessee and the Department. The Advocates or Chartered Accountants
are being engaged by the assessees to prosecute their appeals as per their
instructions. After filing the Power of Attorney, the professionals/Authorized
Representative step into the shoes of the assessee to prosecute their appeals
before the Tribunal on their behalf. Once the appeal is disposed, the power
conferred upon the professionals or the Authorized Representative by virtue of
the Power of Attorney by the assessee, comes to an end. The professionals or
the Authorized Representatives do not have any locus standi to file any
application before the Tribunal in his individual capacity because the Tribunal
is not created to redress the grievances of the professionals. Its function is
to adjudicate the disputes between the assessee and the Department. Since the
appeal is allowed in favour of the assessee, the assessee has no grievance
against the order passed by the Tribunal but this application is filed by Shri
Pradeep Kumar Kapoor, C. A. with an ulterior motive for the reasons best known
to him after 48 days from the hearing, disputing the facts recorded in the
order sheet dated 08/02/2013. Moreover, there is no provision under the Act
which entail the professionals to move any application in their individual
capacity without obtaining the consent of the assessees before the Tribunal
after disposal of the appeal. After disposal of the appeal, an application can
only be filed on behalf of the assessee u/s 254(2) of the Act for seeking
rectification in the order passed under 254(1) of the Income Tax Act. But there
is no provision under the Act in which an application can be filed by any
Advocate/Chartered Accountant/ Authorised Representative in his individual
capacity for seeking rectification in the proceedings of the hearing, without
the consent of the assessee. In fact it is not only misuse of process of the
law but it is sear abuse of process of law.
21. No
professional has any right to invoke the judicial machinery for his own
interest without any reasons. If he does so it would amount to professional
misconduct on the part of the professional. Moreover, to dispute the
proceedings of the court, without any cogent material, is also an attempt to
scandalize the court and also to create hindrance in the proper
judicialfunctioning of the court which cannot be permitted under any
circumstances. If it is allowed to be done, the judicial system will collapse.
There is hierarchy in the judicial system. If someone is aggrieved with the
judicial order passed by any judicial forum, he may approach the higher forum against
that order and get the redressal of his grievance but he has no right to make
an attempt to scandalize the court by moving such a frivolous application.
22. Turning
to the facts of the case, this appeal was disposed of vide order dated
06/03/2013 and order was pronounced in the open court allowing the appeal of
the assessee. Shri Pradeep Kumar Kapoor, C. A. has moved this application with
a request to either recall or expunge the order sheet entry dated 08/02/2013
but he could not identify the particular observations of the Tribunal which are
injurious to the interest of the assessee or even to him. It is contended through
this application that he has argued the matter under protest and he never
agreed that he has no reservation with the Bench on 08/02/2013. In this regard
it is stated that on 08/02/2013 when the matter was taken up for disposal of
the application for adjournment, Shri Pradeep Kumar Kapoor has made a statement
at the Bar that he has got the instructions from his client (assessee) to argue
the case and he has no reservation with this Bench. On the face value of
statement of Shri Pradeep Kumar Kapoor, he was allowed to advance his arguments
on the grounds raised in this appeal. The Revenue was also heard and the order
was reserved. The order with regard to the proceedings was dictated in the open
court in the presence of Shri Pradeep Kumar Kapoor and Smt. Ranu Biswas, Sr.
D.R. The factum of dictation of order in the open court is also admitted by
Shri Pradeep Kumar Kapoor in the impugned application against column No. 7 of
the chart. Thereafter the appeal was disposed of vide order dated 06/03/2013 and
the order was pronounced in the open court in the presence of Shri Pradeep
Kumar Kapoor, C. A. and Shri Praveen Kumar, CIT, D.R.
23. Till
the disposal of the appeal Shri Pradeep Kumar Kapoor remained silent with
regard to the facts recorded in the order sheet dated 08/02/2013. He has raised
the dispute first time with regard to the facts recorded in the order sheet
through an application dated 08/03/2013 contending therein that he has appeared
before the SMC Bench under protest. Thereafter on 28/03/2013, the present
application is filed disputing the contents of the order sheet with the submission
that he had never agreed that he has no reservation with the Bench constituted
by Judicial Member as singly or with Accountant Member. He has not furnished
any explanation as to why he remained silent with regard to the facts recorded
in the order sheet dated 08/02/2013 till the disposal of the appeal or upto
28/03/2013 when the present application was filed. I am also unable to
understand as to what benefit Shri Pradeep Kumar Kapoor will get by moving such
type of application as this application has been filed by him in his individual
capacity and without the consent of the assessee. It is unheard in the judicial
system that some professional can appear before the judicial forum under
protest and argue his case. It is for the professional to take a decision in
this regard whether he wants to appear before a particular court or judicial
forum or not.
24. In the
foregoing paras we have referred number of judicial pronouncements through
which it has been held by the Apex Court that no advocate can take it for
granted that he will appear in the court according to his whim or convenience.
If any counsel does not want to appear in a particular court, that too for
justifiable reasons, professional decorum and etiquette require him to give up
his engagement in that court so that the party can engage another counsel. But
retaining the brief of his client and at the same time abstaining from
appearing in that court, that too not on any particular day on account of some
personal inconvenience of the counsel but as a permanent feature, is
unprofessional as also unbecoming of the status of an advocate. No court is
obliged to adjourn a cause because of the strike call given by any association
of advocates or a decision to boycott the courts either in general or any
particular court. It is the solemn duty of every court to proceed with the
judicial business during court hours. No court should yield to pressure tactics
or boycott calls or any kind of browbeating. It was further held by the Apex
Court that at any rate, no advocate can ask the court to avoid a case on the
ground that he does not want to appear in that court.
25. In the
light of above judicial pronouncements Shri Pradeep Kumar Kapoor has no right
to argue any case under protest even if his contention is accepted. It is for
him to take a decision whether he wants to appear before a particular court or
not but the court is not obliged to adjourn the hearing only for the reason
that he does not want to appear before it.
26. Moreover,
during the course of hearing of appeal on 08/02/2013, Shri Pradeep Kumar Kapoor
has not shown any resentment or reservation with the Bench in arguing his case.
He happily made the statement that he has no reservation with the Bench and he
is ready to argue the case as per instructions from his client. Accordingly,
the appeal was heard. Now after the disposal of appeal or even after 48 days
from the disputed date of hearing the present application is moved disputing
the facts recorded in the order sheet dated 08/02/2013 without any
corroborative evidence. Even Shri Pradeep Kumar Kapoor has not filed the
affidavit in support of his contentions despite the repeated directions of the
Tribunal. Whenever theproceedings of the court are disputed, it should be
supported by an affidavit as there is presumption u/s 114(e) of the Indian
Evidence Act that judicial act have been regularly performed. Since the facts
recorded in the order sheet have not been controverted by filing an affidavit,
the judicial proceedings recorded on 08/02/2013 are correct in view of the
provisions of section 114(e) of the Indian Evidence Act, 1872 and the contentions
raised in the application are highly misconceived, wrong and contemptuous.
Therefore, I have no hesitation in holding that this application is highly
misconceived, contemptuous and is moved with the intention to browbeat and
scandalize the court. Since the action of Shri Pradeep Kumar Kapoor is gross abuse
of process of law, I dismiss the application with the cost of Rs. 5,000/- to be
recovered as arrear of income tax from Shri Pradeep Kumar Kapoor, C. A. as this
application was filed in his individual capacity and not on behalf of the
assessee. This tough stand is being taken only to maintain the dignity and
decorum of the institution and justice delivery system so that it may not be
misused by any professional to settle their personal score. If they have any
grievance against any judicial forum they may approach the higher forum instead
of scandalizing the concerned court/judicial body.
27. Though
an action for scandalizing the court can be taken under the Contempt of Court
Act but I refrain myself from doing so as I have already made reference to the
Hon'ble High Court Allahabad against Shri S. K. Garg, Advocate and Shri Pradeep
Kumar Kapoor, C. A. for Criminal Contempt of Court and the Hon'ble High Court
has already taken cognizance thereof and the matter is sub judice before the
Hon'ble High Court of Allahabad at Lucknow Bench. But I would like to make a
reference to the President of Institute of Chartered Accountants with a request
to take necessary action as per law against Shri Pradeep Kumar Kapoor for his
professional misconduct and also 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. Accordingly, the Registry is directed to send the copy of
this order to the President - ICAI, Institute of Chartered Accountants of
India, ICAI Bhawan, Indraprastha Marg, New Delhi-110 002 for necessary action
in this regard. Copies of the order be also sent to Shri Pradeep Kumar Kapoor,
C. A., the assessee and the Revenue/Department for compliance of the order.
28. In the
result, the application of Shri Pradeep Kumar Kapoor, C. A. is dismissed with
cost of Rs. 5,000/- to be recovered as arrear of income tax.
CA SHIVA SHANKARA R. SHETTY
CHARTERED ACCOUNTANT
Mobile: +91 9035846043 Phone: 080-2678 0452
