Consistency, Uniformity & Equality in Filing of Appeals against Appellate Orders before Higher Forums

It is often seen that some Appellate orders in Vat/Income Tax/Excise/Service Tax are accepted by the Administrative Authorities while in other SIMILAR matters Appeals are  filed in the Higher Forums i.e. Tribunals/High Courts. Are these arbitrary actions of the Administrative Officials justifiable?

Consistency, Uniformity & Equality are the basic premise of Common Law. According to Article 14 of the Constitution, “the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. Both the phrases advocate “equality to status and of opportunity.” In fact, “equal protection of laws” also emphasizes on equal treatment under equal circumstances. Thus, Article 14 stands against any arbitrary or discriminatory action of the Administration. Whenever there is arbitrariness in the State action, an individual can fall back on Article 14. Moreover, once an order has been accepted by the Department, it becomes a ‘Precedent’ which is required to be followed unreservedly by the officers below until & unless the said view is overruled/dissented by the Higher Forum i.e. the Jurisdictional High Court or the Supreme Court. In a recent case of CIT vs. State Bank of India, Income Tax Appeal No. 269 of 2013 decided on 04.02.2015, the Bombay High Court was critical against the arbitrary action of the Revenue Department in the administrative process of ‘pick and choose’ of orders to be challenged in the higher forums. The High Court held that when the Revenue challenges the Appellate order which has rightly followed the earlier order of Higher Forum on the same issue, which has been accepted by the Department, then in such cases, the Revenue should not challenge the subsequent order on the same issue. In case an appeal is preferred from the subsequent order, then the Memo of appeal must indicate the reasons as to why an appeal is being preferred in later case when no appeal was preferred from the earlier order of the Tribunal which has merely been followed in the later case. It would be mandatory for the Officer concerned to file an Affidavit before the matter comes up for admission, pointing out distinguishing features in the present case from the earlier case, warranting a different view in case the appeal is being pressed.

The Court after noticing that the earlier judgment, which had been accepted by the Department, had been merely followed by the ITAT was critical against filing of Appeal in the High Court and has categorically held as under:-

“We have on an earlier occasion in the case of CIT v/s. Smt.Veena G.Shroff have observed in our order dated 27th January, 2015 that when Revenue challenges the order of the Tribunal which in turn relies upon another decision rendered by it on the same issue, then in cases where the Revenue has accepted the order by not preferring any Appeal against the earlier order, the Revenue should not challenge the subsequent order on the same issue. In  case an appeal is preferred from the subsequent order, then the Memo of appeal must indicate the reasons as to why an appeal is being preferred in later case when no appeal was preferred from the earlier order of the Tribunal which has merely been followed in the later case. In any case, the Officer concerned must at-least file an Affidavit before the matter comes up for admission, pointing out distinguishing features in the present case from the earlier case, warranting a different view in case the appeal is being pressed. The absence of this being indicative of non-application of mind, does undoubtedly give an opportunity to the Revenue to arbitrarily pick and chose the orders of the Tribunal which they would challenge in the Appeal before the this Court. Uniformity in treatment at the hands of law is a basic premise of Rule of Law. We trust that the Revenue would take appropriate steps to ensure that the aforesaid directions be implemented in all subsequent matters which are pending Admissions before this Court. If this exercise is done by the Officers  of the Revenue, precious time of all concerned would be saved. Counsel for the Revenue is directed to serve copy of this order to the Chief Commissioner of Income Tax for appropriate action.”

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