Ministry of Finance notified rules for appointment of members in various tribunals on 12.02.2020 in which practice of judicial and accountant members was requiring 25 years of practice. In WP (C) 804 of 2020 dated 27.11.2020 Taking cognizance of this the Honourable SC in Madras Bar Association v. Union of India & Anr. [Writ Petition (C) No.804 of 2020, (dated November 27, 2020)] held in Para No.53(vi) that the rules 2020 should be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in various tribunals. In order to comply SC Order the MOF has notified new amended rules on 30.06 2021 specifying 10 years practice for Advocates and 25 years for Chartered Accountants which is against the right to equality before law. (Extract of Message from CA Chandrashekhar Chitale, Chairman DTC of ICAI)
Appointment as ITAT Member- Disparity with Chartered Accountants- CA to have 15 Year more experience than Advocate for appointment as ITAT Member
Govt notifies Qualification for appointment of Chairperson, Chairman, President, Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member or Technical Member or Member.
These are notified by Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021.
It is noted that for appointment as Judicial Member of Income-tax Appellate Tribunal under the Income- tax Act, 1961(43 of 1961) as Advocate Need to have 10 Year Experience while for Appointment as Accountant Member a Chartered Accountant needs to have 25 Year Experience. It seems to be a disparity with Chartered Accountants.
Relevant Rules for Qualification for appointment are as follows:-
Income-tax Appellate Tribunal under the Income- tax Act, 1961(43 of 1961)
(1) A person shall not be qualified for appointment as President unless he is a sitting or retired Judge of a High Court and who has completed not less than seven years of service as a Judge in a High Court or a Vice-President of the Income-tax Appellate Tribunal.
(2) The Central Government may appoint one or more members of the Income-tax Appellate Tribunal to be the Vice-President or, as the case may be, Vice-Presidents thereof.
(3) A person shall not be qualified for appointment as a Judicial Member, unless,––
(a) he has, for a combined period of ten years, been a District Judge and Additional District Judge; or
(b) he has been a member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or higher post for two years; or
(c) he has been an advocate for ten years with substantial experience in litigation under Income-tax laws in Income-tax Appellate Tribunal, High Court or Supreme Court.
(4) A person shall not be qualified for appointment as an Accountant Member, unless, –
(i) he has for twenty-five years been in the practice of accountancy, –
(a) as a chartered accountant under the Chartered Accountants Act, 1949 (38 of 1949); or
(b) as a registered accountant under any law formerly in force; or partly as such registered accountant and partly as a chartered accountant; or
(ii) he has been a member of the Indian Revenue Service (Income-tax Service Group ‘A’) and has held the post of Principal Commissioner of Income-tax or any equivalent or higher post for two years and has performed judicial, quasi-judicial or adjudicating function for three years.
MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION
New Delhi, the 30th June, 2021
G.S.R. 458(E).—In exercise of the powers conferred by section 184 of the Finance Act, 2017 (7of 2017), the Central Government hereby makes the following rules further to amend the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020, namely: –
1. Short title, commencement and application.— (1) These rules may be called the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021.
(2) Save as provided in these rules, they shall come into force on the date of their publication in the Official Gazette.
(3) These rules shall apply to the Chairman, Vice-Chairman, Chairperson, Vice- Chairperson, President, Vice- President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member, Law Member, Revenue Member, Technical Member, Member of the Tribunal, Appellate Tribunal or, as the case may be, Authority as specified in column (2) of the Eighth Schedule to the Finance Act, 2017 (7 of 2017).
2. In the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (hereinafter referred to as the principal rules), in rule 2, for clause (g), the following clause shall be substituted, namely:-
‘(g) “Search-cum-Selection Committee” means the Search-cum-Selection Committee referred to in sub-section (3) of section 184 of the Finance Act, 2017 (Act 7 of 2017);‘,
3. In the principal rules, rule 4 shall be omitted.
4. In the principal rules, rule 7 shall be omitted.
5. In the principal rules, rule 9 shall be omitted.
6. In the principal rules, for rule 15, the following rule shall be substituted, namely:-
“15. House rent allowance.— With effect from the 1st January, 2021, the Chairman, Chairperson, President, Vice Chairman, Vice Chairperson or Vice President shall have option to avail of accommodation to be provided by the Central Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of Rs. one lakh fifty thousand rupees per month and the Presiding Offices and Members shall have option to avail of accommodation to be provided by the Central Government as per the rules for the time being in force or entitled to house rent allowance subject to a limit of Rs.one lakh twenty-five thousand rupees per month.”
7. In the principal rules , for the Schedule, the following Schedule shall be substituted, namely:-
SCHEDULE
(See rule 3)
| Sl. No. | Name of Tribunal, Appellate Tribunal or Authority. | Qualification for appointment of Chairperson, Chairman, President, Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer, Accountant Member, Administrative Member, Judicial Member, Expert Member or Technical Member or Member. |
| (1) | (2) | (3) |
| 1. | Industrial Tribunal under the Industrial Disputes Act, 1947 (14 of 1947) | A person shall not be qualified for appointment as Presiding Officer, unless he,–
(a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge. |
| 2. | Income-tax Appellate Tribunal under the Income- tax Act, 1961(43 of 1961) | (1) A person shall not be qualified for appointment as President unless he is a sitting or retired Judge of a High Court and who has completed not less than seven years of service as a Judge in a High Court or a Vice-President of the Income-tax Appellate Tribunal.
(2) The Central Government may appoint one or more members of the Income-tax Appellate Tribunal to be the Vice-President or, as the case may be, Vice-Presidents thereof. (3) A person shall not be qualified for appointment as a Judicial Member, unless,–– (a) he has, for a combined period of ten years, been a District Judge and Additional District Judge; or (b) he has been a member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or higher post for two years; or (c) he has been an advocate for ten years with substantial experience in litigation under Income-tax laws in Income-tax Appellate Tribunal, High Court or Supreme Court. (4) A person shall not be qualified for appointment as an Accountant Member, unless, – (i) he has for twenty-five years been in the practice of accountancy, – (a) as a chartered accountant under the Chartered Accountants Act, 1949 (38 of 1949); or (d) as a registered accountant under any law formerly in force; or partly as such registered accountant and partly as a chartered accountant; or (ii) he has been a member of the Indian Revenue Service (Income-tax Service Group ‘A’) and has held the post of Principal Commissioner of Income-tax or any equivalent or higher post for two years and has performed judicial, quasi-judicial or adjudicating function for three years. |
| 3. | The Customs, Excise and Service Tax Appellate Tribunal under the Customs Act, 1962(52of 1962) | (1) A person shall not be qualified for appointment as President unless, —
(a) he is or has been a Judge of a High Court and who has completed not less than seven years of service as a Judge in a High Court; or (b) he is the member of the Appellate Tribunal. (2) A person shall not be qualified for appointment as a Judicial Member, unless, — (a) he has, for a combined period of ten years, been a District Judge and Additional District Judge; or (b) he has been a member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or higher post for two years; or (c) he has been an advocate for ten years with substantial experience in litigation under indirect tax laws in Customs, Excise and Service Tax Appellate Tribunal, High Court or Supreme Court. (3) A person shall not be qualified for appointment as a Technical Member unless he has been a member of the Indian Revenue Service (Customs and Central Excise Service Group ‘A’) and has held the post of Principal Commissioner of Customs or Central Excise or any equivalent or higher post for two years and has performed judicial, quasi-judicial or adjudicating function for three years. |
| 4. | Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (13 of 1976) |
(1) The Chairman of the Appellate Tribunal shall be a person who is or has been a Judge of a Supreme Court or a Chief Justice of a High Court.
(2) The Member of the Appellate Tribunal shall be a person not below the rank of Additional Secretary to the Government of India or any equivalent or higher post for two years and has performed judicial, quasi-judicial or adjudicating function for three years. |
| 5. | Central Administrative Tribunal under the Administrative Tribunal Act, 1985 (13 of 1985). | (1) A person shall not be qualified for appointment as the Chairman, unless he, – (a) is, or has been, a Judge of a High Court; or (b) has, for a period of not less than three years, held office as Administrative Member or Judicial Member in the Central Administrative Tribunal; (2) A person shall not be qualified for appointment,– (a) as a Judicial Member, unless he,– (i) is, or has been, a Judge of a High Court; or (ii) has, for one year, held the post of Secretary to the Government of India in the Department of Legal Affairs or the Legislative Department including Member –Secretary, Law Commission of India; or (iii) has, for two years, held a post of Additional Secretary to the Government of India in the Department of Legal Affairs or Legislative Department; or (iv) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (v) has, for ten years, been an advocate with substantial experience in litigation in service matters in Central Administrative Tribunal, Armed Forces Tribunal, High Court or Supreme Court. (b) as an Administrative Member, unless he, – (i) has, for one year, held the post of Secretary to the Government of India or any other post under the Central Government or a State Government and carrying the scale of pay which is not less than that of a Secretary to the Government of India for one year; or (ii) has, for two years, held a post of Additional Secretary to the Government of India, or any other post under the Central or State Government carrying the scale of pay which is not less than that of Additional Secretary to the Government of India for a period of two years: Provided that the officers belonging to the All-India services who were or are on Central deputation to a lower post shall be deemed to have held the post of Secretary or Additional Secretary, as the case may be, from the date such officers were granted proforma promotion or actual promotion whichever is earlier to the level of Secretary or Additional Secretary, as the case may be , and the period spent on Central deputation after such date shall count for qualifying service for the purpose of this clause. |
| 6. | Railway Claims Tribunal under the Railway Claims Tribunal Act, 1987 (54 of 1987) | (1) A person shall not be qualified for appointment as the Chairman, unless he, –
(a) is, or has been, a Judge of a High Court; or (b) has, for a period of not less than three years, held office as Vice-Chairman, Judicial Member or Technical Member, as the case may be. (2) A person shall not be qualified for appointment as the Vice-Chairman (Judicial), unless he, – (a) is, or has been, a Judge of a High Court; or (d) has been a member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or any higher post for two years; or (c) has, for two years, held a civil judicial post carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or (d) has, for a period of not less than three years, held office as a Judicial Member. (3) A person shall not be qualified for appointment as the Vice-Chairman (Technical), unless he, – (a) has, for a period of not less than three years, held office as a Technical Member; or (b) has, for two years, held a post under a railway administration carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India and has adequate knowledge of rules and procedure of, and experience in, claims and commercial matters relating to railways. (4) A person shall not be qualified for appointment as a Judicial Member, unless he, – (a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (c) has been an advocate for ten years with substantial experience in litigation in claim settlements pertaining to damage to life and property in Railway Claims Tribunal, High Court or Supreme Court. (5) A person shall not be qualified for appointment as a Technical Member unless he is a person of ability, integrity and standing having special knowledge of rules and procedure of, and experience in, claims and commercial matters relating to railways of not less than twenty-five years. |
| 7. | Securities Appellate Tribunal under the Securities Exchange Board of India Act, 1992 (15 of 1992) |
(1) A person shall not be qualified for appointment as the Presiding Officer or a Judicial Member or a Technical Member of the Securities Appellate Tribunal, unless he, —
(a) in the case of the Presiding Officer, is, or has been, a Judge of the Supreme Court or a Chief Justice of a High Court; (b) in the case of a Judicial Member, – (i) is, or has been, a Judge of a High Court; or (ii) has been an advocate for ten years with substantial experience in litigation in matters relating to financial sector before Securities Exchange Board of India, Securities Appellate Tribunal, High Court or Supreme Court. (c) in the case of a Technical Member, – (i) is, or has been, an Additional Secretary for two years or Secretary in the Ministry or Department of the Central Government or any equivalent post in the Central Government or a State Government; or (ii) is a person of proven ability, integrity and standing having special knowledge and professional experience, of not less than twenty-five years, in financial sectors including securities market or pension funds or commodity derivatives or insurance. (2) A Member or Part time Member of the Board or the Insurance Regulatory and Development Authority or the Pension Fund Regulatory and Development Authority, or any person at senior management level equivalent to Executive Director in the Board or in such Authorities, shall not be appointed as Presiding Officer or Member of the Securities Appellate Tribunal, during his service or tenure as such with the Board or with such Authorities, as the case may be, or within two years from the date on which he ceases to hold office as such in the Board or in such Authorities. (3) The Presiding Officer or Member of the Securities Appellate Tribunal shall be a person who does not have any financial or other interest as are likely to prejudicially affect their functions as such Presiding Officer or Member. |
| 8. | Debts Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) | A person shall not be qualified for appointment as Presiding Officer of the Debts Recovery Tribunal, unless he, is, or has been, a District Judge. |
| 9. | Debts Recovery Appellate Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) |
A person shall not be qualified for appointment as Chairperson, unless he, –
(a) is, or has been, a Judge of a High Court; or (b) has been a member of the Indian Legal Service with ten years of experience in litigation and has held a post of Additional Secretary or any equivalent or any higher post for two years; or (c) has held office as the Presiding Officer of a Debts Recovery Tribunal for three years. |
| 10. | Telecom Disputes Settlement and Appellate Tribunal under the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) |
(1) A person shall not be qualified for appointment as Chairperson, unless he, –
(a) is, or has been, a Judge of Supreme Court; or (b) is, or has been, Chief Justice of a High Court. (2) A person shall not be qualified for appointment as Member unless he is a person of ability, integrity and standing having special knowledge of, and professional experience of, not less than twenty-five years in economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration, telecommunications or any other matter which is useful to the Telecom Disputes Settlement and Appellate Tribunal. |
| 11. | National Company Law Appellate Tribunal under the Companies Act, 2013 (18 of 2013). | (1) The Chairperson shall be a person who is or has been a Judge of the Supreme Court or the Chief Justice of a High Court.
(2) A Judicial Member shall be a person who is – (a) is or has been a Judge of a High Court; or (b) is a Judicial Member of the National Company Law Tribunal for five years; or (c) has been an advocate for ten years with substantial experience in litigation in matters relating to company affairs before National Company Law Tribunal, National Company Law Appellate Tribunal, High Court or Supreme Court. (3) A Technical Member shall be a person of proven ability, integrity and standing having special knowledge and professional experience, of not less than twenty-five years, in law, industrial finance, industrial management or administration, industrial reconstruction, investment, accountancy or any other matter which is useful to the National Company Law Appellate Tribunal. |
| 12. | National Consumer Disputes Redressal Commission under the Consumer Protection Act, 2019 (35 of 2019) |
(1) A person shall not be qualified for appointment as President, unless he, –
(a) is, or has been, a Judge of the Supreme Court; or (b) is, or has been, Chief Justice of a High Court. (2) A person shall not be qualified for appointment as Member unless he,– (a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (c) is a person of ability, integrity and standing, and having special knowledge of, and professional experience of not less than twenty-five years in economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or any other matter which is useful to the National Consumer Disputes Redressal Commission. |
| 13. | Appellate Tribunal for Electricity under the Electricity Act, 2003 (36 of 2003). |
(1) A person shall not be qualified for appointment as Chairperson of the Appellate Tribunal, unless he, –
(a) is, or has been, a Judge of Supreme Court; or (b) is, or has been, Chief Justice of a High Court. (2) A person shall not be qualified for appointment as Judicial Member, unless, he– (a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (c) has been an advocate for ten years with substantial experience in litigation in matters relating to power sector before Central Electricity Regulatory Commission, State Electricity Regulatory Commission, Appellate Tribunal for Electricity, High Court or Supreme Court. (3) A person shall not be qualified for appointment as Technical Member unless he is a person of ability, integrity and standing having special knowledge of, and professional experience of, not less than twenty-five years in matters dealing with electricity generation, transmission, distribution, regulation, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which is useful to the Appellate Tribunal. |
| 14. | Armed Forces Tribunal under the Armed Forces Act, 2007 (55 of 2007) | (1) A person shall not be qualified for appointment as Chairperson, unless, he, –
(a) is, or has been, a Judge of Supreme Court; or (b) is or has been a Chief Justice of a High Court. (2) A person shall not be qualified for appointment as Judicial Member unless he is- (a) is, or has been, a Judge of a High Court; or (b) has, for ten years, been an advocate with substantial experience in litigation in service matters in Central Administrative Tribunal, Armed Forces Tribunal, High Court or Supreme Court. (3) A person shall not be qualified for appointment as Administrative Member, unless he, – (a) has held or has been holding the rank of Major General or above for a total period of three years in the Army or equivalent rank in the Navy or the Air Force; or (b) has served for not less than one year as Judge Advocate General in the Army or the Navy or the Air Force, and is not below the rank of Major General, Commodore and Air Commodore respectively; or (c) is a person of ability, integrity and standing having special knowledge of, and professional experience of not less than thirty years in, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter useful to the Armed Forces Tribunal. |
| 15. | National Green Tribunal under the National Green Tribunal Act, 2010 (19 of 2010) |
(1) A person shall not be qualified for appointment as Chairperson, unless he, – (a) is, or has been, a Judge of Supreme Court; or (b) is, or has been, Chief Justice of a High Court. (2) A person shall not be qualified for appointment as Judicial Member, unless he, – (a) is, or has been, a Judge of a High Court; or (b) has, for a combined period of ten years, been a District Judge and Additional District Judge; or (c) has, for ten years, been an advocate with substantial experience in litigation in matters relating to environment and forest in National Green Tribunal, High Court or Supreme Court. (3) A person shall not be qualified for appointment as Expert Member, unless he, – (a) has a degree or Post-graduation degree or Doctorate Degree in Science and has an experience of twenty-five years in the relevant field including five years‘ practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management, biological diversity management and forest conservation) in a reputed National level institution; or (b) has administrative experience of twenty years including experience of five years in dealing with environmental matters in the Central Government or a State Government or in a reputed National or State level institution. |
[F. No. A.50050/9/2016-Ad.1C (CESTAT) (Pt-1)]
RITVIK PANDEY, Jt. Secy.
Note: The principal rules were published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section(i) vide G.S.R. 109(E) dated the 12th February, 2020.
Explanatory Memorandum
Clause 6 of these rules, which amends rule 15 of the principal rules, gives retrospective operation of rule 15 with effect from the 1st January, 2021, in order to give effect to the judgment of the Hon‘ble Supreme Court of India in W.P(C) No. 804 of 2020.It is certified that no person is adversely affected by giving such retrospective operation.
Author Bio
Thank you for not allowing my comments as there was nothing derogatory towards anything but highlighted the desperation of one breed. As usual , thought this is an platform where individual views could be offered but was not knowing it is keen to promote only one brand that is CA. Kindly Remove CA and CMA from your page and promote only CA>
Dear Sir, There is something called moderation and we do that. Comments appear post moderation and your comment been approved by us and appearing now. Your comments also shows that you are biased against CA Community but we are not concerned with that. Further we welcome all constructive suggestion but not such absurd suggestions.
To the learned writer my comments give a clear message for something what happening is wrong. In case if moderation was available then it should been done with headline of this article terming Disparity. Where again I am not biased with any individual or community rather welcome the intellectual side but not the desperation of poking into others domain. Having said , law was never been allocated to accountants it is and will be the filed of practice for lawyers and comparing with them I presume trespassing into others domain should not be provoked. However, I am not sure what made you to comment its an absurd where in earlier stance it is being said you are not concerned with .Where I have my message very clear and being Tax Guru is for common individual to get learned with the updates and explanations we are unable to understand not for promoting one profession alone. Any how thanks for approving my views.
SK Sharma
Also if you read the Notification there is no such thing mentioned for Indirect taxes under Sr.No 3 , aren’t we knowing accounts is also involved there. Here the actual call should be If there is an accountant member for Direct taxes then there should be one Indirect taxed as well and with the relevant expertise the qualified person should get enrolled into and for GOD SAKE do not tell only a CA is qualified to get appointed under that.
Why the word Disparity is used being law is an area of Lawyers and of course there would be preference just mere because he has done CA , How can he can compare himself to a lawyer on the mere grounds being an Accountant ??
Every where why poking noses , Recently being MOF asked to appoint a 7 member committee to help on the glitches on IT portal people started to say why not HTML , JAVA and other languages should be thought in CA itself.
Question is we have separate set of field solely allocated to those who are interested in taking up that should do with Engineering why everything.
Even doctors do not interfere in other specialization being an ENT specialist or Heart what so ever we call post MBBS but here , the so called Financial Accountants need everything in the plate and there would be day being CA we are good in economics also shouldn’t a CA member be appointed as Economist and If something is not in their favor its DISPARITY rather i would say DESPERATE !!
Mr Sunil, Ranting here will make every change. Please continue to show the jealousy. Law ministers & babus read comments here & they will definitely be impressed by you.
You are hero sir