Pr. Director General of Income Tax (Administration & TPS), Mayur Hhawan, Connaught Circus, New Delhi – 110001 intends to empanel the Senior Standing Counsels / Standing Counsels well versed with proceedings under the Sick Industrial Companies (Special Provisions) Act 1985, to represent the Income Tax Department before Board for Industrial and Financial Reconstruction (BIER), Appellate Authority for Industrial and Financial Reconstruction (AAIFR) and High Courts in the cases relating to sick companies. The Senior Standing Counsel / Standing Counsel should be eligible to practice in High Courts. The terms and conditions for engagement including the schedules of fee may be downloaded from the website www.incometaxindia.gov.in. The applicants should apply in form No – Al/A2 which may be downloaded from the website www.incometaxindia.gov.in by clicking on the button `Misc. Communications’ under Important Links’ or obtained from the undersigned.
The last date for receipt of application in this office is 31-10-2016.
Manoj Kumar Chopra
Joint. Director of Income Tax (Recovery)
6th Floor, Mayur I3hawan,
Connaught Circus, New Delhi -110 001.
PROCEDURE FOR ENGAGEMENT OF STANDING COUNSELS
1. Category of Standing Counsels
The Standing Counsels engaged/to be engaged by the department will fall into the following two categories:
(a) Senior Standing Counsel
(b)Junior Standing Counsel
In a station where counsels do not have sufficient experience to be engaged as Senior Standing Counsel, the CCIT may designate a Junior Standing Counsel to perform the functions of Senior Standing Counsel for that station. The Standing Counsel so designated shall perform the function of arguing cases before the Hon’ble High Court/ITAT in the absence of a Senior Standing Counsel.
2. Eligibility Conditions for engagement as Standing Counsel
The eligibility conditions for each category of counsels shall be as under:
2.1. Senior Standing Counsel: In order to be eligible for engagement as Senior Standing Counsel, a person should
a) be eligible to appear before the High Court as an advocate and
b) have a minimum experience of five years of handling direct tax matters before High Courts or ITAT as an advocate.
have been a Junior Standing Counsel of the Department for three years
have been an officer of the Income-tax Department who is eligible to appear before the High Court as an advocate and has retired/resigned from the post of Addl. Commissioner/Director of Income-tax or any equivalent post after occupying such post for at least three years or any higher post or who has been a member of ITAT, provided that he has not been removed/dismissed or compulsorily retired from service on account of disciplinary action and no disciplinary proceeding under service rules or pension rules is pending against him.
2.2. Junior Standing Counsel: In order to be eligible for engagement as Junior Standing Counsel a person should
a) be eligible to appear before the High Court as an advocate and
b) have a minimum experience of three years of handling preferably direct tax matters before High Courts or !TAT.
have been an officer of the Income-tax Department who retirediresigned from the post of Additional/Joint CIT or below and is eligible to appear before the High Court as an advocate, provided that he has not been removed/dismissed or compulsorily retired from service on account of disciplinary action and no disciplinary proceeding under service rules or pension rules is pending against him.
3. Procedure for engagement of Standing Counsels
3.1. For the purpose of engagement, the CCIT will call for applications in Proforma-A1& A2 (as applicable), by advertisement in I (one) national and 2 (two) local newspapers, and from Bar Association of High Court. The advertisement shall also be placed on the notice boards in all the income-tax offices of the Region as well as Department’s Official website. It should, however, be ensured that the process of engagement is transparent and broad based.
3.2. A Screening Committee headed by the CCIT and including at least two Officers not below the rank of PCIT/PDIT/CIT/DIT and CIT (J), wherever possible, shall be formed for the purpose of evaluation of proposals received. As far as possible, suitable representatives from fields like IT/TP/ Exemptions shall also be included. In Delhi, Mumbai, Kolkata (WB & Sikkim), Chennai (Tamil Nadu) and Bangalore (Karnataka & Goa), a Joint Secretary Level Officer from Ministry of Law and Justice (MoLJ) may be requested to be part of the Screening Committee. In case there is no timely response from the MoLJ, the Screening Committee may proceed without any further delay.
3.3. Particulars of the applicants’ expertise in handling direct tax matters, aptitude for interpretation and their suitability to represent the cases of the Department will be examined by the Committee in an interview conducted for the purpose and an evaluation report along with recommendation of the CCIT will be sent to the Board in Proforma-B. The evaluation shall be clone on the parameters enumerated in Proforma B-1 and B-2 whereby marks would be awarded to each candidate. The Committee shall fix a minimum benchmark for selection of candidates at the beginning of the process. Candidates who are below the benchmark are not to be considered irrespective of the number of vacancies.
3.4. Sr. Standing Counsels should preferably be taken from amongst the panel of Jr. Standing Counsels of at least three years standing, subject to favourable assessment by the Screening Committee. In assessing suitability, the quality of drafting, assistance to the appearing counsels and co-ordination aptitude with the officers of the Department should be taken into account.
3.5. The engagement of panel shall normally he for a period of three years.
4. Performance review
4.1. The performance of the counsels shall be reviewed by the jurisdictional PCIT/CIT whose cases have been represented by the Standing Counsel, on a quarterly basis and a report in Pro forma-C shall be submitted to CIT(Judicial)/CCIT before I 5th of the month following end of each quarter.
4.2. On the basis of the reports received from the CsIT, the CCIT/ CIT (J) shall review the performance of the counsels for every financial year and send an annual report to the Board in Pro forma-D before 30th June of the following year.
5. Allocation of Standing Counsels to PCIT/CIT Charges
5.1. The CCIT will be the overall in charge of entire litigation work on behalf of the Income-tax Department in his region before the High Court concerned. Allocation of panel of standing counsels to PCIT/CIT charges has to be done by the CIT (J) under instructions from/ approval of the CCIT. In places where post of CIT (J) is not provided for, this work should be undertaken by the Addl. CIT (J)/Technical working in the 0/o Pr.CCIT under instructions from/ approval of the CCIT. Equitable distribution of 450-500 appeals to each Senior Standing Counsel must be ensured.
5.2 Normally, the Advocate from the panel of Sr. Standing Counsels should be authorized to argue cases. However, the CCIT concerned may authorise Junior Standing Counsels to argue in such matters as deemed fit. It must be ensured that 20% of cases are assigned to such Junior Standing Counsels, who have at least 1 year experience as Junior Standing Counsel, to be argued independently by him/her.
6. Termination of engagement/resignation/expiry of term
The engagement of the Counsel would be terminable through written intimation by either side without assigning any reason. The CCIT is authorized to act on behalf of the Department for the purpose under intimation to the Board. On expiry of the term or termination or resignation, the Standing Counsel shall immediately handover the briefs and other related papers to the PCIT/CIT concerned or the other Standing Counsels nominated by the CCIT for the purpose and the pending bills of the counsel shall be settled within three months of the submission of the bill.
7. Duties of the Standing Counsel
A. The Counsel shall
7.1. draft Memorandum of Appeals and related petitions/applications within reasonable time, keeping in view the limitation period;
7.2. file the appeals/other petitions/applications as required, within limitation and communicate the particulars (Diary number, lTA number etc.) to the PCIT/CIT concerned;
7.3. communicate defects/office objections, if any, in the appeals etc. and take prompt steps to rectify the same with the assistance of the PCIT/CIT;
7.4. appear on behalf of the department in the High Court/ other judicial forums, as required in the cases assigned to him;
7.5. keep the PCIT/CIT informed of the important developments in the case particularly with regard to dates of hearing, conclusion of hearing, date of judgment/order etc.;
7.6. when any case attended to by him is decided against the Department, apply for certified copy of the judgment within two working days of pronouncement and give his opinion regarding the advisability of filing an appeal/SLP against such a decision within three days of taking delivery. He shall send an ordinary copy of the same, as soon as available, to the PCIT/CIT concerned. In other cases also the same time limits shall be applicable, though opinion will not be required;
7.7. if required, render all assistance to the law officers, Advocate General of the State Government, special or Senior Counsel, who may be engaged in a particular case before the Supreme Court, High Courts, !TAT. etc.;
7.8. give legal advice to the Department on such civil, criminal and revenue matters pertaining to direct taxes and such matters arising in the course of administration of the Department as are referred to him by the Department including:
a) examination and settling of drafts of legal nature,
b) examination of trust deeds and draft rules of provident funds for recognition, and
c) drafting of applications, petitions CM to be filed in Courts of law and other statutory bodies;
7.9. send the case file and related papers to the PCIT/CIT concerned after the judgement/order in the case is passed but before submission of the final bill for professional services.
7.10. perform such other duties of legal nature, which may be assigned to him by the Department.
7.11. A monthly report shall be submitted by the Counsels as prescribed in the Proforma E.
B. Specific duties of Jr. Standing Counsel and related matters
7.12. The duties of Jr. Standing Counsel specifically include rendering meaningful assistance to Sr. Standing Counsel in
a) Drafting memo of appeal and consulting assessment records etc., if required.
b) Removal of defects / office objections in the cases filed by the department.
c) Research for preparation of cases for representation.
d) Assist the Sr. Counsel in preparation and submission of the Monthly report.
C. Non- compliance/ non- adherence to the duties and responsibilities by the Standing Counsels
The CCIT may take appropriate action against the erring counsels in case of non-compliance and nonadherence by the Counsels.
8. Assistance to Standing Counsels by the Department
The CCIT has to ensure that the Judgment Database of the NJRS is made available to all Standing Counsels. The jurisdictional PCsIT/PDsIT/CsIT/DsIT shall provide all assistance to the Standing counsels such as providing briefs, assessment records, etc. in preparation of a case. In particular, copy of appeal scrutiny report in respect of the impugned order of the [TAT and copy of paper book filed by the assessee before ITAT shall be provided to the counsel for assistance in drafting memo of appeal and preparation of case for representation. The PCsIT/CsIT/PDsIT/DsIT shall respond to communication from the standing counsels promptly and have regular interaction with them in order to keep a close watch on progress of the cases in the Court. The PCsIT/CsIT/PDsIT/Ds1T shall, while reviewing the quarterly performance of Counsels, look into the issues, if any, raised by the counsels and ensure their appropriate resolution.
9. Right to private practice
9.1 The Counsel will have the right of private practice, which should not, however, interfere with the efficient discharge of his duties as counsel of the Department but he shall not advise, hold briefs or appear against the Department before any authority, ITAT or Court in matters under the statutes relating to direct taxes.
9.2 If the Counsel happens to be a partner of a firm of lawyers or solicitors, it will be incumbent upon the firm not to take up any case against the Department in the High Court concerned or before any authority/ITAT falling within the jurisdiction of the said High Court or any case against the department in other courts arising out of the matters falling within the jurisdiction of the said High Court.
Note: CCIT referred to in this annexure will mean Chief Commissioner of Income Tax in charge of Judicial work in the Pr. CCIT region.
Relevant Annexures and Forms