HC shows displeasure on appeal filing by dept. in matters covered by binding precedent of Apex Court
Case Law Details
Bombay High Court was annoyed for filing appeal in a matter covered by a binding precedent of the Apex Court. The Court sought an explanation from the counsel for the Income Tax Department why appeal u/s 260A of the Income Tax Act has been filed by him when there was an authoritative pronouncement on the issue by the Hon’ble Supreme Court in CIT v/s Tulsyan NEC Ltd. 300 ITR 226 (SC). On his pretext that the decision to file an appeal is taken by the Jurisdictional Commissioner and he has merely abided by his directions, the Court irked by his explanation held thus:
These state of affairs can hardly be termed as satisfactory. It is unfortunate that the Revenue is unable to make any distinction with regard to the legal position noted in the judgment of the Supreme Court of India and it is bound by the said judgment of the highest court in the country. The Revenue seems to be unaware of Article 141 of the Constitution of India and mandate thereof. Once there is nothing to the contrary, then, the authoritative pronouncement should bind all. The Tribunal then cannot be approached and equally this Court to complain about an adverse order. We are shocked that when such is the concession recorded that the Appeals of this nature are brought before this Court and it’s precious judicial time is wasted. Let the concerned Commissioner and who advised that such Appeal should be filed before this Court, remain present before us on the next date of hearing. After giving him an opportunity we would then record our dissatisfaction and proceed to impose costs. It is only to comply with the principles of natural justice and equally fairness and equity that we adopt this course.
… It is very unfortunate that we had to secure the presence of the highest officers in the department of Income Tax, for seeking an explanation on the points which we have raised in our order dated 12.09.2014.
.. The only intent to secure personal appearance of higher officials is to impress on the Revenue that larger public interest mandates and requires it not to waste precious time of the highest Court in the State by engaging it in frivolous Appeals and applications. It may be that, at the departmental level, the officers are not satisfied with adverse orders and desire to contest the issue or raise it before the Income Tax Appellate Tribunal. However, when the Tribunal follows and applies the ratio of a judgment of the Hon’ble Supreme Court of India, then, we would expect the officers to gracefully accept an adverse verdict. Where no distinguishing feature can be pointed out, then, the law of the land must be allowed to prevail. The mandate of Article 141 of the Constitution of India is known to all. The further mandate of the Constitution as enshrined in Article 261(1) is giving of full faith and credit to public acts, records and judicial proceedings of the union and of every State. Therefore, the law declared by the Supreme Court binds all and cannot be brushed aside. The repeated attempts to raise the same issues and questions in relation to same Assessee and year after year results in loss of precious judicial time and public revenue. We do not expect hereafter such an irresponsible conduct from the higher officers. Ordinarily, we would have in the absence of any explanation forthcoming, passed severe structures against the department and the officers in particular but we refrain from doing so since the concerned officials present in Court sincerely apologized for the lapse and urged that the Appeal may be disposed against the Revenue and in terms of our earlier orders so also the judgment of the Hon’ble Supreme Court of India, both of which are binding on us. Hence, the Appeal is dismissed.
OFFHAND
Strictly speaking, the underlying message from the Bench must be regarded to equally apply to / be extended to take within its ambit, – besides issues squarely/’on all fours’ covered by any earlier court ruling(s), be that of the SC or HC, – also a point sought to be made an issue but not open to any such genuine/bona fide controversy as to prove defensible in an intelligent debate; much less the tests of judicial prudence. That is, one on which the law is so unambiguously clear , in letter and / or spirit, as to lend no scope for the lower authorities failing to readily see and appreciate as to what view is the right or better view to impartially take. To put it differently, no tax authority can be considered to have “acted in the performance of his duties”/ well within the frame work of the law, of which he is a creature, as a “public servant”, if he does or omits to do something repugnant to what the law says, or is clearly intended to say.
The overwhelmingly large volumes of case law, apart from the large number of retrospective legislation resorted to over the de3cades, bear ample testimony / is a pointer to the actual fact that the reality, that has been daunting/marring the tax administration all along,been quite opposite/ different.
Unfortunately there is no accountability for filing frivolous appeals on one hand and the officers who take decision of not filing appeals face difficult questions from their superiors and sometime branded as pro-trade or even corrupt. Those officers who take negative decisions ie against trade are hailed as honest. Mindset has to change at top level.