HC dismisses petition of CA alleging harassment by ITAT Members

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1. CA Dev Kumar Kothari says:

   Learning – We must be utmost careful before we complain against authorities unless we have sufficient evidence and support to justify our complaint and grievances.
   The cases against government may be won easily but it is much more difficult to won cases against government officials.Corruption is rampant but is is difficult to establish. This is because corruption at operational levels is due to powers to harras public in name of working in good faith and as per understanding of concerned officer.

   CA Dev Kumar Kothari
   Relevant judgment:
   Yoginder Kumar Sud Versus President Income Tax Appellate Tribunal and others 2013 (5) TMI 238 – PUNJAB & HARYANA HIGH COURT
   Facts of the case:
   On reading the judgment we find that CA Yoginder Kumar Sud (for short YKS) had earlier made a complaint to the President of ITAT, against one of members of Tribunal (respondent no. 2 who is judicial member), and the member was transferred out of Amritsar. However, after about one year the same member was again posted at Amritsar. Due to the complaint made by him earlier,, he was further harassed by two members. YKS felt harassed, he alleged that members made illegal demands which he could not meet. Therefore, he was being harassed, he was ignored and unjust orders were being passed by members in cases represented by him.
   The complaint was made by YKS alone and there was no other complainant to support his case.
   The complainant however, has not given any details of demands made by respondents.
   Relief sought :
   The petitioner has sought a writ of mandamus for restraining respondents No.2 and 3, i.e., Judicial and Accountant Members of Income Tax Appellate Tribunal, Amritsar from discharging their functions and directing the President of Income Tax Appellate Tribunal to decide representation dated 18.3.2013 in the time bound manner.

   In the complaint the Petitioner YKS has raised the following grievances:
   a. the petitioner is facing lot of harrassment at the hands of respondents No.2 and 3, who are Judicial and Accountant Member of the Tribunal at Amritsar
   b. The reason for harassment is that the petitioner has not been able to meet their expectations and illegal demands.
   c. The Tribunal is delaying the matters of the petitioner or passing unreasoned orders or by totalling ignoring him.
   d. Respondent No.2 was transferred out of Amritsar on a representation submitted by the petitioner but after one year respondent No.2 has been again posted as a Judicial Member of Amritsar Tribunal.
   e. The Members are totally prejudice against the petitioner on account of his having made a complaint against respondent No.2 to the President.
   Observations of High Court:
   a. The writ petition seems to settle the scores which the petitioner might have raised during the course of his conduct as representative of the assessees.
   b. There is no details as to when and how the demands were raised by members.
   c. The petition is bereft of any material particulars
   d. the petitioner has no right to claim mandamus for restraining an authority constituted under the Act from discharging the functions entrusted to it by the Statute.
   e. The present writ petition is gross abuse of process of law
   therefore, the court dismissed the petition.
   Learning from the case:
   Do not complain against any authority unless you can justify your complaint and reasons of grievances, with evidences and support of others.
   The petitioner has not given any evidence about illegal demands as also unjust orders passed by respondents. At least he should have shown some cases were he felt that respondents did not act and did not pass orders as per law and that the orders showed prejudices with which orders were passed. In absence of such material, the court held that the petition is gross abuse of process of law. This is quite serious, and can also be considered as an inappropriate behavior by a CA as a responsible professional.
   Remember that orders may be wrong, yet an officer can justify them as made as per his bona fide understanding , belief and to the best of his judgments. In some situations, wrong orders (contrary to settled legal position) are passed by senior most departmental authorities (like say CIT u/s 263), just for sake of protecting interest of revenue, as officer expect a review of settled legal position or reversal of the same by an amendment etc. We find orders passed by authorities including CIT u/s 263 which are contrary to binding judgments. This unfortunately has become common practice.
   Before making a complaint, think seriously about likely positive and negative repercussions and long-term impact.
   By making a complaint you can be further harassed.
   The authority listening to your complaint is not likely to listen your complaint sympathetically but is likely to hear and decide the matter in a prejudiced manner because the person against whom complaint has been made belongs to a power full group of person and belongs to the same fraternity.
   Even suggestion can be considered complaint – experience of author:
   Long ago (some time during 1984 -85) author had experienced that refund order (cheque issued by ITO) was returned unpaid by Reserve Bank Of India (RBI) with reason – “no advice”. The first time the reason given by RBI was perhaps correct. However, when assessee requested the ITO, he made arrangements for submission of advice to RBI and assured that advice ahs been submitted. However, again the cheque was returned with the same reasons “No advice”. Assessee then waited for few days and again deposited cheque, the cheque was again returned by RBI with same remarks.
   Author discussed the matter with the ITO, and then send a suggestion to the Finance Minister that the system of advice can be dispensed with because when cheques of larger sums , issued by other parties are passed on due verification, then what is need of advice in case of cheque issued by ITO. As in case of any other cheque cheque issued by ITO can also be passed after due verification of cheque, amount, signature etc.
   The Finance ministry (CBDT) asked an explanations from the ITO, and because the ITO has to write few letters on such enquiry, he felt as if I / my client (assessee) had made a complaint against the ITO. Author explained his that he wrote a suggestion, and that was after discussion with him, and that ITO was not in fault, the RBI has returned cheque wrongly twice. As the ITO considered my suggestion as complaint, naturally he was a bit annoyed with the author and the concerned assessee.
   The Finance Ministry failed to ask RBI as to how the cheque was returned, when advice was already submitted. Rather the ITO was put to explain and he felt disturbed from such un-necessary enquiry. The practice of advice is still in vogue, when a refund order / cheque is issued by ITO/ AO. In fact some time during 2007-08 in a case refund cheque was issued by refund banker (SBI) like a bankers cheque or pay order/ DD. Therefore, the cheque was deposited as soon as received. However even such cheque was returned unpaid for reason ‘no advice’, hence the same was required to be deposited after some days to hope that advice was submitted by the ITO.
   Therefore, in government departments even very good suggestions can be considered as complaint so be very careful before making even a billion dollar suggestion to government authorities.
   Therefore, complaints should generally be avoided- we find that there is hardly any action on complaints (excepts against poor and petty functionaries). Even in private sector, complaints against senior persons are hardly heard at least, till the accused is in good book of his boss.

     Reply

   October 20, 2013 at 10:53 am
2. R Balasubramanian says:

   I Have two observations on the subject:

   1. The petitioner could have tried the vigilance/CVC route which recognises complaints of harassments,humiliations and procrastination with ulterior motives on the part of public authorities in their work.
   2. With no disrespect to the Honourable Court,if the judgement (as reported above) could be oral, can the judicial process not recognise oral statements and averments, in camera if required, in sensitive cases? It is very unusual for a practising Chartered Accountant to get constrained to approach the a higher judicial forum like the High Court,with a petition confronting certain authorities in whose system and jurisdiction he has to survive as a practising professional.

   Regards.

   R Balasubramanian, Chennai-59.

     Reply

   May 12, 2013 at 10:17 am
3. DEEPAK SONI says:

   The Honourable High Court should have considered the issue more seriously on the basis of all the cicumstantial evidences because the corruption is rampant in the country. The practitioners are indeed facing several difficulties if the adjudicating authority is not comfortable with them for any reason.

     Reply

   May 11, 2013 at 4:45 pm