ITAT pulls Up CA for Seeking to Intimidate It by using derogatory, defamatory and contemptuous Language

Relevant Extract of the Judgment

2. Brief facts of the case are that this appeal of the assessee earlier dismissed by the ITAT vide order Dtd. 16-09-2014. Thereafter the assessee vide application dated 27-10-2014(received in this office on 30-10-2014) in Miscellaneous Application No. 32/JP/2014 prayed for showing leniency and recalling the original order. The present bench after hearing Shri K C Moondra FCA, in the interest of justice, vide order dated 26-02-20 15 recalled the order of dismissal of appeal and restored the original appeal for hearing. This clearly indicates that this ITAT Bench was rather benevolent to Mr. Moondra and had no prejudice or bias whatsoever against the assessee or his counsel, his MA was properly heard and expeditiously disposed of by an oral order fixing 4-3-15 as next date of final hearing .

2.1 As scheduled the appeal came up for hearing on 4-03-2015. During the course of hearing, ld. Counsel for the assessee Shri K.C. Moondra advanced a seemingly improbable proposition that an anonymous letter was received by him from benami employee of the Income Tax Department mentioning that some conspiracy was hatched by some income tax officers against the assessee. During the course of hearing of appeal bench found that these facts were not emerging from the record, consequently his contentions based thereon were not permissible u/r 10 of ITAT rules . Unaware of this rule Ld. Counsel’s attention was drawn to Rule 10 of Income Tax Rules which reads as under:-

Filing of affidavit

‘’1-. Where a fact which cannot be borne out by, or his contrary to, the record is alleged, it shall be stated clearly and concisely and supported by a duly sworn affidavit.’’

2.3 It was pointed out to him that his contentions and allegations against income tax department are not emerging from record in a verifiable manner. They being in his personal knowledge can to be appreciated only when they are by an affidavit in terms of rule 10, deposing the correct facts in comprehensive manner. Ld. Counsel realized that he has been lacking in compliance of rule 10, therefore he undertook to file requisite comprehensive affidavit conforming to rule 10 of the ITAT Rules and requested for time which bench readily acceded by adjourning it to his chosen date 29-4-15, following order was passed by the bench:

‘’4-03-2015 – Assessee counsel Shri K. C. Mundra, C.A. undertook to file a detailed and comprehensive affidavit duly sworn by him in respect of alleged anonymous letter which is being relied on by him. Adjourned to 29-04-2015. Final chance.

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(T.R, Meena) AM                                     (R.P. Tolani) JM

2.4 It will not be out of place to mention that it was the burden of the counsel to vouch safe his arguments and come prepared where affidavit is required. This bench may very well have proceeded with hearing ignoring the unsupported facts and contentions, without affidavit which may have proved to be detrimental to assessee. However bench found that this senior FCA was ignorant about the applicability of rule 10, lest his omission cost dearly to assessee, who may be ultimate sufferer of his counsel’s misjudgment about how to conduct an appeal. Extending a gesture of equity, good conscience and fair play bench brought to his notice this grave omission, which he realized and voluntarily undertook to file a comprehensive affidavit. This again shows that bench was helpful to assessee and its counsel and not hostile to them in any manner.

2.5 On 29-04-2015, i.e. final date of hearing, his son Shri Mukul Moondra claiming to be an ACA (Chartered Accountant) who as not even in prescribed dress code as provided under Rule 17A of Income Tax Rules, appeared with an adjournment application mentioning as under:-

’Above said appeal is fixed for hearing for 29-04-2015 but on 28-04-20 15 and 29-04-20 15, under signed A/R has to attend the marriage in close relation and therefore, undersigned ‘A/R will be unable to attend the hearing on 29-04-2015.’’

2.6 This adjournment application was found to be very inappropriate as it was bench was bound by its earlier order i.e. 4-3-2015 directing the hearing of 29-4-15 as final chance, with overriding direction, giving adjournment on such a flimsy excuse will amount to mockery of our own judicial order which was not in conformity with canons of judicial discipline. Shri Mukul Moondra was intimated that earlier hearing was ordered as final chance, therefore, his request for adjournment cannot be acceded. Consequently the adjournment application was rejected by following judicial order:

‘’Assessee had taken this date voluntarily. Now a pre­fixed marriage is pleaded to avoid final chance. Rejected.

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(T.R, Meena) AM                                   (R.P. Tolani) JM

2.7 Since adjournment application was rejected, bench proceeded with the hearing, Shri Mukul Moondra neither filed the requisite affidavit nor advanced any arguments, consequently ld. DR Shri Rajesh Ojha was heard and record was perused, accordingly the appeal was taken as heard and reserved for orders.

2.8 When the Bench rose after finishing the board, Shri Mukul Mundra endeavored to raise an altercation with bench about giving adjournments to others and rejecting his application. He was politely told this being final chance in his appeal, adjournment request could not be acceded which was dismissed, the appeal was heard and will be decided on merits, they should wait for the bench order. Shri Mukul Mudra then wanted to know that what will happen to client, bench expressed its help less ness as the adjournment application was rejected, appeal is heard on merits in open court. After the ITAT order is pronounced they can pursue appropriate remedy which may lie with the Hon’ble High Court.

2.9 Thereafter on 30-04-2015, the Registry put up a letter with a laconic affidavit sent by Shri Shiv Ratan Moonddra, Director of M/s Moondra Woolen Mills (P) Ltd. with following note :-

‘’The matter was heard ex-parte on 29-04-2015. The affidavit as directed by the Hon’ble Bench on 4-03-2015 was received in the Registry on 30-04-2015 at 3.30 PM i.e. after hearing of the case.’’

On this letter the Bench noted as under:-

‘’As the matter is already heard, it cannot be entertained. File.’’

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(T.R, Meena) AM                                       (R.P. Tolani) JM 30/04/15

2.10 Without even waiting for the order Shri K C Moondra sent intimidating letters on 30-4-15 received on 1-5-15 & 2-5-15 received on 5-5-15, hurling all sorts of wild accusations about the presiding officer ld. JM and bench functioning. Such nasty and frivolous accusation can only be product of fit of furry. The barrage of indiscriminate allegations include misuse of official position, corruption, insulting him and son: colluding with retired income tax officers to harm his client so on and so forth. The severity of accusations and fury emerging from their language is highly derogatory, defamatory and contemptuous, sent with a scheme and clear intention to intimidate judicial officers to desist from passing an unfavorable order. The bench was taken aback at their venomous contents and decided to take suitable action on such baseless delinquent acts.

3. Without waiting for the order ld. Counsels prejudged the issues, though that bench may pass an adverse order; in order to salvage his professional interest to willy nilly win the case, by a hideous scheme he sent letter Dtd. 2-5-15 to Hon’ble President ITAT and Hon’ble Law Secretary Govt. of India and Asst. Registrar Jaipur making wild accusations of all sorts like corruption, collusion, insulting, bias, prejudice and what not. These contemptuous letters speak by themselves, frivolity of language, distorted contents and apparent self contradictory contents of his letter demonstrate that it is a crude attempt to influence independent judgment process for petty professional ends.

3.1 It shall be noteworthy that till 28-4-15 these professionals had no objection with the bench as no grievance whatsoever was raised. The casual way of adjournment against final chance shows their casual attitude of taking the judicial process for granted. The emphatic demand that – if other matters were adjourned, our appeal should also have been adjourned; amounts to dictating the terms to the court. It reflects their inaptitude in failing to appreciate the vital fact that thus adjournment was granted as a final chance which was agreed by them. “They keep ‘holier than thou attitude’; if I commit wrong or disobey there is nothing wrong in it but if the bench doesn’t conduct itself in my desired way then bench is by default wrong and I raise scandalous tirade against bench.” To show their might they shoot frivolous complaints, file litany of motivated RTIs proclaiming to be RTI activist. These brazenly scandalous acts have been unleashed by them with swagger of impunity and recklessness without realizing that when the appeal is pending orders such threats construe contempt of court.

3.2 The bench has no objection on sending any complaint to higher authorities; it’s the right of every person in free and democratic India. The most important question is propriety of sending intimidating complaints when their appeal i.e. a judicial matter is heard on merits and is pending for orders.

3.3 A litigant or his representative cannot directly or indirectly; by overt or covert means attempt to influence the process of judicial decision making by shooting intimidating and derogatory letters or to pressurize the judicial officers while deciding a heard appeal.

3.4 The bench has rather extended the best possible benevolence and grace to the assessee and his counsel by recalling its already dismissed appeal; giving date of choice for fresh hearing i.e. 4-3-15; hearing the appeal on scheduled date; intimating counsel about his statutory lapse and lack of preparation, mistake in his pleadings about rule 10; his undertaking to file a proper and detailed affidavit which was solely in his own interest and acceding his request for final adjournment to 29-4-15. Where is prejudice, bias or insult on the part of bench or the presiding officer. Everything is on record, proceedings are in open court witnessed by counsels from both sides. The facts and record are sufficient to demonstrate that bench was impartial and fair to the ld. Counsels and assessee. There is nothing to even remotely suggest any reason on the part of bench to show partiality, prejudice, bias or intention to insult Mr. K C Mundra or his son who are unknown to us as they come from a far away place ‘ Sumerpur’’ and are rarely seen in the ITAT proceedings. They were treated with deserving dignity by offering help and guidance in open court proceedings.

3.5 Perhaps they are enraged on their own professional inaptitude which became visible in open court proceedings, it requires self-introspection and hard preparation of appeal; instead they have misdirected their self fury on the bench indiscriminately. Their own professional infirmities can be improved from their side by mending their unprofessional attitude. They cannot score brownie points by telling the world that they can get desired orders by threatening to harm judicial officers and their delinquent conduct is justified.

3.6 Mr. K C Moondra’s misadventure doesn’t stop here, camouflaging under the self proclaimed virtue of an RTI activist, motivated to bully the judicial officers, he deliberately filed various RTI applications asking for about 81 queries in respect of number of personal details about the judicial officers including their leave, HQ leaving permission, use of car, attendance in office, timings of holding courts, in whose case adjournments were granted or not granted, when officers go to Delhi, whom do they meet etc. etc. The above facts prove that RTI attack is not for any public purposes but to intimidate judicial officers, seized with his judicial matter. A trick to masquerade his blackmailing tactics for mean professional interest, to extract desired result in a sub-judice appeal. The RTI fiat unfolded by Mr. Moondra is an apparent colorable device, an attempt to influence/obstruct independent judicial process. The attempt amounts to a total misuse of professional position for dubious gains.

 3.7 These acts amount to interfering and obstructing judicial process which apart from awarding of cost u/r 32A of ITAT rules is liable for appropriate contempt of court proceedings as well. Such attempts need to be seriously deplored, firmly tackled and suitably dealt with to send a message in professionals fraternity to behave properly and conduct themselves as ordained by ITAT rules and standing orders; court rules, ICAI instructions, professional ethics and etiquettes; Bar council of India guidelines in this behalf.

 3.8 In propriety they should have waited for the order to be pronounced instead of unfolding foul tactics to influence the pending judicial order. They started intimidating judicial officers to cover their professional inaptitude, misconduct and lapses. This type of intimidation amounts to interference in judicial proceedings which is emphatically forbidden to be exerted in direct or indirect manner.

 3.9 It may be pertinent to mention that ld. Counsel Shri K C Moondra FCA and Mukul Moondra ACA, seem to be ignorant about filing a proper power of attorney, which is to be given on a NON JUDICIAL stamp paper. Whereas they have filed a plain printed paper with Rs. 10/- court fee stamp which is not a valid and prescribed power of attorney. Thus their appearance could have been lawfully denied by the bench. This again shows the lenient approach of the bench bellying his wild allegations.

3.10 Furthermore the ICAI guidelines provide that every chartered accountant shall mention his registration no. on the power. Sadly both of them i.e. S/shri K C Moondra and Mukul Moondra have not mentioned their ICAI registration no. Making their power of attorney again defective, inadmissible and in violation of ICAI guidelines.

 4. Under these facts and circumstances, we find that the ld. Counsel for the assessee Shri K.C. Moondra and his son Shri Mukul Moondra are liable for suitable proceedings for their professional misconduct, misbehavior, wasting the time of court and unlawfully attempting to interfere in the process of judicial dispensation.

4.1    Considering all the facts, circumstances and material on record by invoking rule 32A of the ITAT Rules we hold that Shri K.C, Moondra and Shri Mukul Moondra are liable for levy of costs as prescribed by said rule 32A. Consequently, we impose cost of Rs. 25,000/- on Shri K.C. Moondra and Rs. 10,000/- on Shri Mukul Moondra for their delinquencies as mentioned above. Separate proposal under Contempt of Court Act will be duly forwarded to Hon’ble Rajasthan High Court.

 4.2 The cost is recoverable u/r 32A(2) of the ITAT Rules and shall be deposited in the ‘Prime Minister Relief Fund. Copy of this order to be sent by registry to Institute of Chartered Accountants of India to take appropriate disciplinary action against them in terms of ICAI rules and guidelines. The progress may be communicated to bench through registry.