Case Law Details
Case Name : Income-tax Officer Vs Shri Bhagwan Agarwal (ITAT Agra)
Related Assessment Year : 2001- 02
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We may also note here that the conduct of the assessee and his counsel Shri K.G. Agarwal, C.A. in concealing the relevant and material fact from the Tribunal would amount to professional misconduct on the part of the Chartered Accountant. The Chartered Accountant has not only the duty to defend the case of litigant to the best of his ability, but equally has duty to maintain dignity and decorum of the courts. He has to assist the Bench as per law in arriving at the just decision in the matter. Shri K.G. Agarwal, C.A. consciously and deliberately in the garb of l
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Really shocking, Counsels should disclose all facts.
Whether disclosure or non disclosure of HC Order would have effected order of MA because the issue which was raised in MA of the assesseee was never before the High Court so it cannot be said that the same was already decided by the HC. I believe the Department had also not disclosed it for the very same reason. If “nondisclosure” is an issue, so i think that the default has been done on Revenue’s part too.
I differ with your views because of the following reason:
As per the ITAT order “the Hon’ble Allahabad High Court vide order dated 17.08.20 10 held that the finding of Tribunal is finding of fact and no substantial question of law arises from the order of the Tribunal. The appeal of the assessee was accordingly dismissed.”
It appears that the appeal was rejected at the admission stage itself because no substantial question of law was involved. Once the appeal was not entertained, it cannot be said as rejection of appeal rather it is rejection of appeal petition. The appellant was stopped before entering into the doors of HC. Therefore, merger principle does not apply in that case.
In this view of matter, since the MA was simply for rectification of apparent mistake u/s 254(2) of the Act, was it relevant and necessary to disclose the HC order? Whether disclosure or non disclosure of HC Order would have effected order of MA because the issue which was raised in MA of the assesseee was never before the High Court so it cannot be said that the same was already decided by the HC. I believe the Department had also not disclosed it for the very same reason. It is a settled law by the Apex Court that advocates are not liable for wrong legal advice. At the most, in the present case it can be a wrong legal advice.
I wonder when the Department itself has first choosen not to disclose the same as being not relevant information how it on changed opinion it can file second MA, which should have been rejected at the initial stage itself.
I am not clear about this observation of ITAT “altogether new plea was taken in miscellaneous application, which has been accepted by the Tribunal and the entire order has been reviewed. The assessee did not explain why new plea taken in MA was not earlier raised before Hon’ble High Court in appeal.”
Two questions on this:
(i) Whether in first MA, the entire order has been reviewed, which ITAT cannot do? So, ITAT was also wrong like assesseee, AR and the Department?
(ii) Whether ITAT itself confess that the new plea taken in MA was not earlier raised before Hon’ble High Court in appeal. If it is so, where is a question of HC having decided the new issue raised in MA. Once the same remains not decided, no merger principle applies.
It is shocking to read that a professional has suppressed Hon’ble High court order affirming the lower court order in a Misc.application and get over with relief. However, it is equally not understandable how and why the Order of the Hon’ble High Court was not brought to the notice of Hon’ble Tribunal by the Revenue at the time of disposal of Misc.application filed by the assessee.
Though it is absolutely wrong on the part of Mr.K.G.Agarwal, as alleged as suppressed about Hon’ble High Court order in the same case, I also fail to see, why the Hon’ble High Court’s order was not placed by the Revenue at the time of disposal of assessee’s Misc.application by the Hon’ble Tribunal ? is it revenue is casual about such applications ?
KG Agrawal can be prosecuted as well for conspiracy and abetment of concealment
I am surprised that How Shri K. G. Agrawal guide to the assessee without any law of procedure. No professional ignore the judgments of superior authority in the same matter. It is a right decision in the direction to save the assessee from misguiding or misleading on legal issues by the professionals who have approach before the court.
Now the ball is in ICAI court. How their disciplinary committee reacts let us see.