QUASI JUDICIAL ORDERS-INTEGRITY & STABILITY

[Sadanand Bulbule]

A. In SIEMENS ENGINEERING & MANUFACTURING CO. OF INDIA LIMITED VERSUS UNION OF INDIA & ANR. - 1976 (4) TMI 204 - SUPREME COURT, the Hon’ble Supreme Court has held that, every quasi-judicial order should be supported by reasons, which is cardinal to the principles of natural justice and this must inform every quasi-judicial process and the said rule must be observed in its proper spirit and mere pretence of compliance would not satisfy the requirement of law.

B. On a practical note, in the interest of sustainable quasi-judicial proceedings and based on the time tested logic of the judgement [supra] as regards to the accountability and responsibility of the quasi-judicial authorities under the GST Act, 2017, my humble effort is to break the ice as regards to the overall attitude of quasi-judicial authorities become more realistic and pragmatic.

C.By and large, in the present day most complex business world, there would not be failure on the part of honest tax payers to disclose material facts of business transactions under the GST Act, 2017 and pay applicable GST amount on their own. The reason is quite simple; the jaws of the GST Law are sharper and toxic for deliberate tax evaders or defaulters. Admittedly the on-going monthly robust collection of GST is the clean mirror for maximum compliance of tax laws by honest tax payers. However there may be human errors and bonafide mistakes too. Upon convincing the same, taxpayers willingly would come forward and cure them by paying additional tax, interest and/or penalty as per law. So, the quasi-judicial authorities are supposed to render due justice wherever needed in a cordial manner. Otherwise that seat of quasi-judicial authority becomes tainted by issuing unjustified orders and needs sanitisation of such orders by rendering justice once again by the higher forums in the statutory ladder. The seat of quasi-judicial authority is not a piece of “furniture” but awakens the sense of duty, conscience, symbolises great culture of truth and justice. The authorities with negativity cannot be proud of fallible orders. Law is supreme than the quasi-judicial authorities and not vice-versa.

D.The quasi-judicial authorities are expected to function fearlessly and open-mindedly. Nothing stops them as fear does. Fear stops them from the possibilities of greatness more than any other single factor. Fear must be overcome. They have to understand the mechanism of fear. It is not because they fear, they avoid things, but it is because they avoid things it becomes fear.

E. Taking a leaf out of the adverse comments of the aggrieved business community that, many of the quasi-judicial authorities are afraid of their pension/transfer to waterless places, suffer from nervousness, pre-conditioned minds, building private “box” around them, who are settled into old habits repeating the same old patterns, subjective pressure etc., if they pass legal and sustainable orders in favour of  tax payers or appellants.  Many tax payers have regretted that, it is easier for a camel to go through the eye of a needle than arguing with the people who use their brains less. No one is useless. Just some people use their aptitude less. Old habits die hard! What to do?  From the reliable sources it is gathered that, due to fear alone some of the authorities are leaning towards fallible orders despite heavily loaded meritorious cases. Many quasi-judicial orders reflect “butchery of merits, no sense of responsibility and accountability” within. Their minds are seldom prepared to hear the brutal truth, learn new skills and new facts. It is time to change their thinking from mundane mind-set to a new perspective and reprogram their thoughts. Because the prevailing law is perfect until it is flipped by the Hon’ble High Courts and the Supreme Court.

F. A responsible quasi-judicial authority is expected learn to unlearn what it has learned and must have courage to rethink and change its thoughts. Just as one cannot plant new crops without first pulling out the old roots and giving the new seeds a chance, so also one needs to unlearn before he can learn anew. The most important lessons lie not in what one needs to learn, but in what he needs to unlearn. When this happens, it will be moment of a breakthrough and finally justice gets its right place. Theoretical encyclopaedia is one thing. A living encyclopaedia is completely another. The first one is mere theory and the second one practical. Let every quasi-judicial order become a living order and render true justice. This is the foundation of legal order in terms of Article 265 of the Indian Constitution.

G. The well learned tax payers and tax professionals are lamenting that, some of the quasi-judicial authorities are intellectually/ ideologically shallow producing unlawful orders which are completely dying in the judicial courts with heavy strictures/cost. Even the so called iconic orders have failed to stand the test of law in the superior courts. Then what about the fate of ordinary unlawful order? Therefore the quasi-judicial authorities should stop seeing everything through “revenue prism”. Rather they should see the facts through “merit prism” to reach the ultimate truth. Merits cannot be buried for one and the only reason, to spin revenue by hook or crook, irrespective of its ill-fate later!

H. In simple words, the quasi-judicial authorities shall respect the law and the facts as they expect it from the tax payers. They must only think and act as per the purpose and purport of the GST Act. So there cannot be discrimination of law, one wishful law for the quasi-judicial authority and another harsh law for tax payers.

I. Effective tax governance requires a competent and independent positive mind for successful quasi-judicial proceedings. The authorities have to ensure themselves that they do have the necessary skills, professional expertise and deep knowledge to adapt to new/multifaceted domestic and global business practices so that they can issue sustainable orders without causing any harm to legal revenue, taxpayers and create long-term value for all stakeholders.

J. The quasi-judicial authorities can be truly “honest” only when their decisions are honest, objective and impartial based on empirical evidences and not otherwise. No other parameters are effective enough to calibrate their ‘honesty’, as the decisions of such authorities are subject to stringent judicial scrutiny.

K.Unfortunately the statistical history indicates that, almost 80% of tax orders have miserably deceased in the High Courts and Supreme Court for the simple fact that, such orders passed by half-baked minds are, shallow, prejudiced, biased and revenged. There are bundle of other reasons for such unhygienic orders including deliberate contempt of binding juridical rulings despite on records. Unlike traditional times, tax payers never tolerate this kind of maladministration. So the authorities have to be more practical and rapidly change their thought process to be adapted minds.

L.Because of unlawful and worthless quasi-judicial orders, tax payers are bleeding silently. Old tricks of massaging orders by the authorities are no more thinkable as tax payers are well equipped with a battery of intellectually expert tax consultants to wage battle against any unlawful orders even in the Hon’ble Supreme Court. So it is high time for the quasi-judicial authorities to walk on the path of truth with organic orders, which alone brings royal grace to that seat.

M.Further there is a saying that: “The greatest pride is to grow in one’s own eyes and the greatest set back is to fall in one’s own eyes”. One’s decision decides which side he/she fits best

N The simple remedy is,one has to stretch the line of limits to know that there is no limit for learning. So I humbly urge all the authorities to embrace these principles to drive the quasi-judicial forum towards rendering timely justice to tax payers based on strong merits, while safeguarding the interests of State revenue and integrity of tax system all the time.

[These are purely my experienced expressions shared in the best interest of all the stakeholders. It is the choice of the readers to agree or disagree]