TMI Blog2013 (8) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... under any circumstances. If it is allowed to be done, the judicial system will collapse. There is hierarchy in the judicial system. If someone is aggrieved with the judicial order passed by any judicial forum, he may approach the higher forum against that order and get the redressal of his grievance but he has no right to make an attempt to scandalize the court by moving such a frivolous application. Not able to understand, what benefit Shri Pradeep Kumar Kapoor will get by moving such type of application as this application has been filed by him in his individual capacity and without the consent of the assessee. It is unheard in the judicial system that some professional can appear before the judicial forum under protest and argue his case. It is for the professional to take a decision in this regard whether he wants to appear before a particular court or judicial forum or not. Shri Pradeep Kumar Kapoor has no right to argue any case under protest even if his contention is accepted. It is for him to take a decision whether he wants to appear before a particular court or not but the court is not obliged to adjourn the hearing only for the reason that he does not want to appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for 05/02/2013 and on the same premise the adjournment was sought by the assessee. The appeal was again listed for hearing on 08/02/2013 despite repeated objection to the fixing of appeal for hearing before the Bench of Judicial Member. It was further contended that despite the objection raised by the learned Counsel for the assessee, the case was heard and some order was dictated in the open court which the undersigned counsel could not fully comprehend at that time. 2. It was further submitted through this application that on the following working day and also thereafter, the undersigned counsel was required by the Bench Clerk to sign the order sheet entry dated 08/02/2013. Later on the learned counsel moved an application for issuing the certified copy of the order sheet entry dated 08/02/2013. On 08/03/2013 the learned counsel got an opportunity to peruse the order sheet entry and on that date he declined to sign the said order sheet entry as the same was contrary to what had transpired at the time of hearing on 08/02/2013. On 08/03/2013, in order to convey his objection to the said order sheet entry, the undersigned counsel appeared before the Judicial Member and expresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for filing the affidavit in support of the application. On 06/05/2013, Shri Pradeep Kumar Kapoor, C.A. has filed an affidavit along with the annexures and on perusal of the affidavit it was noticed that the affidavit was not filed as per the direction issued vide order dated 10/04/2013. Since Shri Pradeep Kumar Kapoor, C. A. has disputed the facts recorded in the order sheet, he was again asked to file the detailed/exhaustive affidavit narrating the entire incident that took place on the date of hearing. Accordingly hearing was adjourned for 14/05/2013. On 14/05/2013, Shri Pradeep Kumar Kapoor, C.A. did not appear nor any application for adjournment was filed on his behalf and hearing was adjourned to 2 P.M. but Shri Pradeep Kumar Kapoor, C. A. did not appear and the argument of Revenue was heard on the application and their reply to the application was also taken on record. 4. Vide order dated 10/04/2013 Shri Pradeep Kumar Kapoor, C.A. was asked to explain under which section the present application dated nil received by the Registry on 25/03/2013, after the disposal of the appeal is filed. Shri Pradeep Kumar Kapoor, C.A. was also asked vide order dated 06/05/2013 to advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has turn down the request of transfer of appeal of Shri S. K. Garg, Advocate vide order dated 04/01/2013. Consequently, the matter was again listed for hearing before the SMC on 21/01/2013 but none appeared on behalf of the assessee and the hearing was adjourned to 05/02/2013 and on 05/02/2013 an application for adjournment was moved by Shri Pradeep Kumar Kapoor, C. A. on the same ground. Copy of this application was supplied to the learned Sr. D.R. and the hearing was adjourned for 08/02/2013 for disposal of the application. On 08/02/2013, Shri Pradeep Kumar Kapoor, C. A. appeared and agreed to argue the appeal before the Bench as he has received instructions from his client to argue the case and he has no reservation with the Bench. Accordingly, the arguments of the Shri Pradeep Kumar Kapoor, C. A. and Smt. Ranu Biswas, Sr. D.R. were heard and order was reserved. The proceedings of hearing of 08/02/2013 was dictated in the open court in the presence of Shri Pradeep Kumar Kapoor, C. A. and Smt. Ranu Biswas, Sr. D.R. Since the controversy has been raised with regard to the contents of this proceedings, I feel it proper to reproduce the same as under: Dated 08/02/2013 Present f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Shri G. D. Agarwal, Hon'ble Sr. Vice President and Hon'ble Vice President has disposed of the matter by observing that it is the judicial matter, let learned Judicial Member do the needful in accordance with law. Thereafter, Shri Pradeep Kumar Kapoor, C. A. again filed the impugned application on 28/03/2013 with a request to recall/expunge the order sheet entry dated 08/02/2013, copy of which was supplied to Sr. D.R. and she has filed the reply to this application contending therein that after disposal of the appeal, these type of applications are not at all maintainable. 8. So far as issue of reclusal of the Judicial Member from hearing of the case of Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. is concerned, I would like to place certain facts on record in order to understand the real controversy arisen in this Bench. 9. On filing of copy of representation made by Shri S. K. Garg, Advocate to the Hon'ble President of I.T.A.T. in the case of Sumit Kumar Rastogi in I.T.A. No.472/Lkw/2011 and C.O. No.42/Lkw/2012 on 30th August, 2012 containing contemptuous and scurrilous allegations against the Judicial Member, the Judicial Member recused himself from hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any Advocate/Chartered Accountant including Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. Thereafter, the appeal was argued by Shri Pradeep Kumar Kapoor, C. A. and the appeal was disposed of vide order dated 16/04/2013. The order passed by the Judicial Member in SMC has not been challenged by the assessee. Therefore, once it has been made clear by passing a judicial order vide order dated 08/02/103 in the instant case that the Judicial Member has no reservation in hearing the appeals of any assessee being represented by Shri S.K. Garg, Advocate or Shri Pradeep Kumar Kapoor, C. A. after making a reference of criminal contempt of court against Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. to the Hon'ble High Court, the controversy with regard to the reclusal of Judicial Member from hearing cases of Shri S. K. Garg, Advocate and Shri Pradeep Kumar Kapoor, C. A. no longer subsists. 11. It is pertinent to mention here that I.T.A.T. is creation of Income Tax Act through section 252 of the Income Tax Act (hereinafter called as "Act") and u/s 252 the Central Government shall constitute an Appellate Tribunal to adjudicate the issues raised between the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Society v. Union of India Ors. 1994 (5) SCC 557, it was observed that since litigants have a fundamental right to speedy justice it is essential that cases must proceed when they appear on board and should not ordinarily be adjourned on account of the absence of the lawyers unless there are cogent reasons to do so. If cases get adjourned time and again due to cessation of work by lawyers it will be in the end result in erosion of faith in the justice delivery system which will harm the image and dignity of the court as well. 14. Noting casual and indifferent attitude of some of the lawyers and expecting improvement in quality of service the Hon'ble Apex court in the case of Sanjiv Datta, Deputy Secretary, Ministry of Information Broadcasting, New Delhi etc. 1995 (3) SCC 619 held as under: "Of late, we have been coming across several instances which can only be described as unfortunate both for the legal profession and the administration of justice. It becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their hand to improve the quality of the service they render both to the litigant-public and to the courts, and to brighte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating. 17. In the case of Lt. Col. S. J. Chaudhary v. State (Delhi Admn) 1984 (1) SCC 722, it was held that it is the duty of every Advocate who accepts a brief to attend the trial and such duty cannot be overstressed. It was further reminded that having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. A lawyer is under obligation to do nothing that shall detract from the dignity of the court of which he is himself a sworn officer and assistant. He should at all times pay differential respect to the judge and scrupulously observe the decorum of the courtroom. 18. In the case of Ramon Services Pvt. Ltd. v. Subhash Kapoor and Others, Appeal No. 6385 of 2000, vide judgment dated 14/11/2000, their Lordships of Apex Court have made a reference to Warvelle's Legal Ethics at page 182 where it has been stated "of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r their instructions. After filing the Power of Attorney, the professionals/Authorized Representative step into the shoes of the assessee to prosecute their appeals before the Tribunal on their behalf. Once the appeal is disposed, the power conferred upon the professionals or the Authorized Representative by virtue of the Power of Attorney by the assessee, comes to an end. The professionals or the Authorized Representatives do not have any locus standi to file any application before the Tribunal in his individual capacity because the Tribunal is not created to redress the grievances of the professionals. Its function is to adjudicate the disputes between the assessee and the Department. Since the appeal is allowed in favour of the assessee, the assessee has no grievance against the order passed by the Tribunal but this application is filed by Shri Pradeep Kumar Kapoor, C. A. with an ulterior motive for the reasons best known to him after 48 days from the hearing, disputing the facts recorded in the order sheet dated 08/02/2013. Moreover, there is no provision under the Act which entail the professionals to move any application in their individual capacity without obtaining the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of Shri Pradeep Kumar Kapoor, he was allowed to advance his arguments on the grounds raised in this appeal. The Revenue was also heard and the order was reserved. The order with regard to the proceedings was dictated in the open court in the presence of Shri Pradeep Kumar Kapoor and Smt. Ranu Biswas, Sr. D.R. The factum of dictation of order in the open court is also admitted by Shri Pradeep Kumar Kapoor in the impugned application against column No. 7 of the chart. Thereafter the appeal was disposed of vide order dated 06/03/2013 and the order was pronounced in the open court in the presence of Shri Pradeep Kumar Kapoor, C. A. and Shri Praveen Kumar, CIT, D.R. 23. Till the disposal of the appeal Shri Pradeep Kumar Kapoor remained silent with regard to the facts recorded in the order sheet dated 08/02/2013. He has raised the dispute first time with regard to the facts recorded in the order sheet through an application dated 08/03/2013 contending therein that he has appeared before the SMC Bench under protest. Thereafter on 28/03/2013, the present application is filed disputing the contents of the order sheet with the submission that he had never agreed that he has no reserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring only for the reason that he does not want to appear before it. 26. Moreover, during the course of hearing of appeal on 08/02/2013, Shri Pradeep Kumar Kapoor has not shown any resentment or reservation with the Bench in arguing his case. He happily made the statement that he has no reservation with the Bench and he is ready to argue the case as per instructions from his client. Accordingly, the appeal was heard. Now after the disposal of appeal or even after 48 days from the disputed date of hearing the present application is moved disputing the facts recorded in the order sheet dated 08/02/2013 without any corroborative evidence. Even Shri Pradeep Kumar Kapoor has not filed the affidavit in support of his contentions despite the repeated directions of the Tribunal. Whenever the proceedings of the court are disputed, it should be supported by an affidavit as there is presumption u/s 114(e) of the Indian Evidence Act that judicial act have been regularly performed. Since the facts recorded in the order sheet have not been controverted by filing an affidavit, the judicial proceedings recorded on 08/02/2013 are correct in view of the provisions of section 114(e) of the Indian E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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