TAX BAR ASSOCIATION
Near Shanti Tower,
Jalori Gate Bari
Mobile : 98290-26549
Email: [email protected]
CA. Manoj Gupta
16, Imertiya Bera
Paota C Road,
Mobile : 98285-10543
E-mail: [email protected]
Sub: Representation on Clause 12 of “The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021
1. We are a leading Bar Association of Chartered Accountants, Advocates and Tax Consultants in Western Rajasthan. Time and again we have raised issues of national interest and our representations have always been considered favourably by the Govt. and authorities.
2. We are making this representation with regard to one of the proposal contained in Clause 12 of “The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 by which the following proviso is being introduced in section 184 of Finance Act, 2017:
“Provided that a person who has not completed the age of fifty years shall not be eligible for appointment as a Chairperson or Member.”
3. Tribunals are an important forum for imparting impartial, easy and speedy justice to the public. Taking example of ITAT (as the ITAT is the mother-tribunal), its motto is “Nishpaksh Sulabh Satvar Nyay”. Therefore, the Tribunals must have most suitable, efficient, energetic and meritorious Members.
4. The proposal to prescribe minimum eligibility age of 50 years for appointment of Members of Tribunals, is neither legal nor rational and nor even practical, as can be seen from following:
(i) Due to minimum entry-age of 50 years, the young and meritorious candidates shall be debarred from joining the Tribunals. Only those who have completed the age of 50 years, shall be entitled. Therefore, the pool of eligible candidates shall be substantially narrowed.
(ii) A person having completed 50 years of age, would not be persuaded to leave his established practice. This would further restrict the pool of efficient candidates.
(iii) The appointment of Members is made on occurrence of vacancies. The vacancies are not readily available on completing 50 years. Therefore, when the vacancies would arise, many candidates would have actually completed a higher age, say 53 – 54 years. At such higher age, it would be difficult for them to leave their existing profession and take up the job of Member.
(iv) At a higher age of say 53-54 years, a person has several responsibilities of family and personal life. Many a time health issues also arise. We know that the work of Tribunals involves frequent travels, camping, etc. Therefore, it becomes very difficult for a person of higher age to undertake membership of Tribunals. A person at the age of 40 years do not face these challenges and therefore can do very well.
(v) Bright and meritorious candidates start profession at an early age of about 22 years. They complete about 15-18 years of professional practice at the time of attaining 40 years and get a good grip over the work. Therefore they perform very well at the age of 40 years.
(vi) Income-tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963:
Rule 3(3) prescribes:
“A person shall not be qualified for appointment as a member if:-
(i) he is less than thirty-five years of age; or
(ii) he is more than fifty years of age”
This system of minimum 35 years and maximum 50 years is coupled with the fact that the candidates are interviewed by a high level Search-cum-Selection Committee, consisting of 4 members, headed by the Chief Justice of India. The Committee calls the candidates in the order of age, starting from higher-aged candidates. The Committee selects the most promising candidates based on assessment of interview and professional achievements of candidates.
Hence this system of 35 years – 50 years has been working well and serving the purpose very effectively. No fallacy has been found in this system.
(vii) There is no law for minimum eligible age even for High Court judges. But the practice is to appoint persons with age of 45 years. The Selection-Collegium gives priority to higher-aged candidates. Tribunal Members are lower in rank and status than the High Court Judges. Hence, the standards applicable should be either nearly equal or even lower as compared to High Court Judges.
(viii) Union of India Vs. R. Gandhi, President Madras Bar Association, Civil Appeal No. 3067 of 2004, Judgement dated 11.05.2020 (Supreme Court): The Hon’ble Court held thus:
“48 …Therefore, when the legislature substitutes the Judges of the High Court with Members of the Tribunal, the standards applicable should be as nearly as equal in the case of High Court Judges.”
The Hon’ble Court held thus:
“33. According to the learned Attorney General, as the term of four years is subject to re-appointment, it would not make much of a difference if the term fixed is four years instead of five years. He mentioned that due to the provision for re-appointment, eligible lawyers who shall be appointed at the age of 45 years will have the advantage of four or five extensions or till the said member reaches the age of 65 years.”
Thus, even the Ld. Attorney General has acknowledged that the entry age cannot be more than 45.
5. In view of above, we submit that the minimum age of 35 years, as prescribed in aforesaid 1963 Rules, should be continued and no change in required. Alternatively, if any change is desirable, the minimum age should be 40.
Before ending, we would like to submit that “Justice delayed is Justice denied”. We are aware that the ITAT, has a big volume of pending appeals and further appeals are also being filed. But the appointments of Members is not forthcoming and even a good number of existing members has retired / is going to retire very soon. Hence there is an urgent need to appoint meritorious, efficient and energetic candidates immediately. The proposal of minimum 50 years, being illegal, irrational and impractical, would certainly invite further litigation and the process of appointment would be delayed, causing more injustice to the aggrieved taxpayers.
We hope you will receive this representation very positively in the interest of nation.
For Tax Bar Association Jodhpur
The Hon’ble Union Minister of Law and Justice,
Ministry of Law and Justice,
4th Floor, A-Wing, Shastri Bhawan,
New Delhi-110 001
Email: [email protected]