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2019 (5) TMI 194 - HC - Income TaxRemoval of adverse remarks made against the Officer / counsel of the appellant - Ld. single judge made some adverse remark against Officer / counsel of the appellant - whether issuance of notice are required to the respondent herein – writ petitioner/assessee? - whether the remarks/observations made in the impugned common order as against the officer of the appellant – Department and its Senior Standing Counsel require to be expunged or not ? - HELD THAT:- We hold that the respondent herein – writ petitioner/assessee is not concerned about the observations/ adverse remarks made against the officer of the Department and their Senior Standing Counsel and consequently, we hold that no notice is required to be issued to the respondent herein – writ petitioner/assessee. The legal principle that can be culled out from the above decisions is that unwarranted comments and remarks were not called for and what was important to bear in mind was as to whether the three cardinal tests laid down by the Hon'ble Supreme Court in the decision in the case of Mohammed Naim [1963 (3) TMI 63 - SUPREME COURT] had been complied with. One of those three tests is as to whether the party, whose conduct is in question is before the court or has an opportunity of explaining or defending himself. In the instant case, neither the officer of the Department nor its Senior Standing Counsel had an opportunity of explaining or defending themselves. Therefore, the first test laid down in the decision in the case of Mohammed Naim has not been fulfilled in the instant case. The second test is as to whether there is evidence on record bearing on that conduct justifying the remarks. We have carefully gone through the memo filed by the Department and the observations made by the learned Single Judge. The memo sought for an innocuous prayer to adjourn the matter by 15 days. It referred to engagement of a Special Counsel from New Delhi, who had been nominated pursuant to a request made by the Director General of Income Tax (INV.), Chennai vide letter dated 17.12.2018. Thus, in our considered view, there was nothing to infer that the Senior Standing Counsel for the Department overstepped his brief or for that matter the conduct of the officer warranted certain observations against her. Therefore, we hold that the second test also does not stand fulfilled. The third test is as to whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct we are of the clear view that the observations made by the learned Single Judge were not necessary for a decision in the case nor it is an integral part thereof. Therefore, we hold that the third test laid down does not stand satisfied. Considering the fact that none of the three tests as laid down by the Hon'ble Supreme Court in the decision in the case of Mohammed Naim has been fulfilled, we are of the clear view that the adverse remarks/ observations made against the officer/officers of the appellant – Department or its Senior Standing Counsel are not warranted and accordingly, they need to be expunged. Writ appeals are allowed, the adverse remarks/ observations made against the officer/officers of the appellant – Department or its Senior Standing Counsel in the common order dated 31.1.2019 are expunged and consequently, they must be treated as having never existed or being a part of the common order passed by the learned
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