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Commissioner of Income Tax-24 And Pomela Bali Prasad Versus Shri M.H. Patel And Mr. Manubhai Hargovind Patel & Ors.

2017 (9) TMI 1034 - BOMBAY HIGH COURT

The Appeal admitted on the following substantial question of law : - (1) On the facts and circumstances of the case and in law the Hon'ble I.T.A.T. erred in holding that the assessment was bad in law when it had itself in its order held that there was a typographical error while taking approval in the sense that the year was wrongly mentioned as Asst. Year 2001-2002 instead of 2000-2001 ignoring that the mistake is remedial in view of section 292B of the Income Tax Act and does not render t .....

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on of admission of this Appeal, enclosing therewith a copy of this order so as to enable the Tribunal to act accordingly. - Income Tax Appeal No. 584 OF 2014 With Criminal Writ Petition No. 1590 OF 2017, IPA NO. 147 of 2017 - Dated:- 6-9-2017 - MR. S.C. DHARMADHIKARI AND MR. PRAKASH D. NAIK, JJ. For The Appellant : Mr. Charanjeet Chanderpal with Ms. Namita Shirke For The Respondent : Mr. M.H. Patel ORDER P.C. : 1 When this Income Tax Appeal as also the Criminal Writ Petition was on our Board o .....

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ould recuse himself from hearing the cases any further. 3 We have perused the written note put on record by the respondent appearing in person. We have very sympathetically and patiently heard him even on his objection that the Bench presided over by one of us should not take up the matter. It is unfortunate that we have to pass an order and when a party-inperson or any other litigant insists on a recusal and in this manner. In the case of Subrata Roy Sahara vs. Union of India & Ors. reporte .....

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n a matter at hand and particularly in the nature of appeal should not result in a litigant being taken aback or, if taken aback, responding in this manner. His Lordship held as under :- 9. But Mr. C.A. Sundaram, another Senior Counsel representing the petitioner, distanced himself from the above submissions. He informed the Court, … I am not invoking the doctrine of bias, as has been alleged … We are of the view, that a genuine plea of bias alone, could have caused us to withdraw .....

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we are accused of not correctly depicting the submissions, as they were canvassed before us. In our understanding, the oath of our office, required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will. This is certainly not the first time, when solicit .....

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particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to such a press .....

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st for recusal made with the intent to intimidate the court or to get better of an inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice. (Emphasis is ours) 11. In fact, the observations of the High Court of Delhi and those of this Court reflected, exactly how it felt, when learned counsel addressed the Court, at the commencement of the hearing. If it was learned counsel s posturing ant .....

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om the conclusions, we will draw, in the course of the present determination. … … … … 14. One of the reasons for retaining the instant petition for hearing with ourselves was, that we had heard eminent Senior Counsel engaged by the two companies exclusively for over three weeks during the summer vacation of 2012. We had been taken through thousands of pages of pleadings. We had the occasion to watch the demeanour and defences adopted by the two companies and the conte .....

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ad resulted in a different kind of understanding, about the controversy. For any other Bench to understand the nuances of the controversy determined through our order dated 31.8.2012, would require prolonged hearing of the matter. Months of time, just in the same manner as we had taken while passing the order dated 31.8.2012, would have to be spent again. Possibly the submissions made by the learned counsel seeking our recusal, was consciously aimed at the above objective. Was this the reason fo .....

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concerned feels, that the order is wholly illegal and void? 4 The Hon'ble Supreme Court of India has clarified that when a Judge takes oath of office and in terms, prescribed by the constitution, implicit in that is there is no ill will, much less any enmity and when a Judge is supposed to decide a case impartially, he has to be strict. Such strictness is demanded by the very office to which a person is appointed as a Judge. Eventually, it is a constitutional office and the institution of j .....

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ud. His Lordship the Hon'ble Mr. Justice Khehar once again pronounced in The Recusal order in NJAC case Supreme Court Advocates-on-Record Association and another vs. Union of India Writ Petition (Civil) No.13 of 2015, decided on October 16, 2015, that :- ... … … … A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never be acc .....

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to continue to be part of the Bench, flows from the oath which I took, at the time of my elevation to this Court. 6 A view has already been taken by our Court also and in a reported decision in the case of Ganesh Ramkisan Bairagi vs. Parwatabai Tukaram Appa Landge & Ors. reported in 2016 (4) ABR 699, Hon'ble Mr. Justice R.K. Deshpande had this to observe and hold :- 14 Again, at this stage, Shri. V. V. Bhangde, the learned counsel for the appellant/defendant No. 2, submits that the offi .....

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ly, patiently and with interest. After conclusion of the arguments, both the learned counsel were asked as to whether they intend to make any additional submissions, and thereafter the dictation commenced as per the usual practice. I need not delve upon any further and I refrain from making any comments against Shri. V. V. Bhangde. However, the increasing trend need to be commented upon; so as to caution the lawyers and the litigants about the consequences of it, which can be avoided. 15. A lawy .....

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ence does not permit him to take up the matters of some lawyers. In these situations, there may not be any problem either with a Judge or a lawyer, but where the Court passed an order against a particular lawyer not to appear in his Court, it takes a colour of penalty or punishment to such a lawyer, which may result in taking some disciplinary action against him by the Bar Council of India or of State, which issued him a Stand of Practice. Such a stage by a Court maybe construed of black-listing .....

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urance to bring the result of the cases in their favour or to impress upon the clients sitting in the court room during the course of hearing, the boldness which he possesses to browbeat the Court. If a lawyer exercises his choice of not conducting the matter, he loses his client and fees, which he does not want to do. If a Judge accedes to such demand of a lawyer for recusal, the effect is threefold (i) the confidence of a lawyer to browbeat the Court is boosted (ii) a lawyer gets rid of the Co .....

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tish Mahadeorao Uke v. The Registrar, High Court of Bombay, Bench at Nagpur, Nagpur). I have observed in para 25 thereof as under: 25. A Judge may recuse at his own choice from a case entrusted to him by the Chief Justice and it would be a matter of his own choosing. But recusal at the asking of the litigating party, unless justified, must never be acceded to. This is what the Apex Court has held recently in NJAC case instituted by the Supreme Court Advocates on Record Association and Another v. .....

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ed by some lawyers, is a matter of Judge's own choosing and it cannot be at the dictates of the lawyers. What a Judge has to see is that he performs his duty of deciding the matters before him without fear or favour, affection or ill will. He has to keep in mind the principle that the justice should not only be done, but it must appear to have been done. The decision of recusal to take the matters of lawyers, depends upon the Judge's personal relations or intimacy with such lawyers, and .....

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udges. Once the constitutional authority of a Judge or the Judges to adjudicate the matters is accepted, it cannot be lowered down by asking him or them to recuse to hear and decide the matter. 19. To prevent a Judge or the Judges from performing his or their duties in this fashion causes distraction of attention in the judicial proceedings, which amounts to interference in the course of justice. Merely because a lawyer, litigant or public at large feels that the approach adopted or a decision i .....

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utioned about the authority of the Courts. 7 We respectfully concur with the views expressed by the learned single Judge of this Court as they accord with the principle laid down by the Hon'ble Supreme Court. 8 We have noted from the record that this is not the first time the respondent has made such a request. The respondent was also a party litigant before the Income Tax Appellate Tribunal at Mumbai. With great pain and anguish the Tribunal has held that the respondent made an application .....

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ed by the litigants and that is how for a favourable verdict, they resort to every tactic in the book or even impermissible in law or unknown to fairness, equity and justice. The Hon'ble Supreme Court has referred to them extensively in the foregoing paragraphs which we have reproduced from the judgment. 9 In such circumstances we do not think that the litigant who is appearing in person before us can be given an opportunity to dictate to the Court and to any judicial officer as to who shoul .....

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y-in-person has not stated anything by which one can conclude that there is a reasonable apprehension of bias and prejudice. This party-inperson has had no occasion in the past to argue any of the cases in person before one of us (S.C. Dharmadhikari, J.). Yet, he makes a request and as above. This has, therefore, taken us by surprise. The allegations of bias and apprehension of injustice having no basis, but vague and general statements being made in the application, all the more we are disincli .....

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der the Prevention of Corruption Act. Challenging the very authority to summon him as an accused and to face the charge of bribery and corruption, the primary argument considered was whether a Judge and particularly of the High Court, can be subjected to such an act. 12 In negating that contention and emphasizing the role of a Judge in administration of justice that in the paragraphs relied upon the observations therein have been made. 12 We do not see how, torn from the context, these apply and .....

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was challenged also on the ground that it is not in accordance with the principles of natural justice, fairness and equity. A reasonable opportunity of hearing has been denied. In dealing with such a contention and issue, the observations in paragraph 19 have been made. These observations, heavily relied upon, would apply to cases of the nature noted by the Hon'ble Supreme Court. We have never refused to hear the respondent appearing in person and we hold no malice or ill will against him. W .....

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them to complain. It is not the court which drags them into legal proceedings nor summons them to answer any allegation or charge merely to derive some pleasure. The embarrassment and harassment faced by litigants allegedly is not, as in this case, because of any act of the court. It is the respondent who raised a jurisdictional issue before the Tribunal and, therefore, the Tribunal felt it was its bounden duty to deal with all contentions. Hence none of the judgments relied upon by the respond .....

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ns or limitations on judicial power or the ambit and scope of a particular provision like Section 260A of the Income Tax Act, 1961. On par with section 100 of the Code of Civil Procedure, 1908, this section enables the Court to admit an appeal if that raises a substantial question of law. 16 Inviting our attention to section 292B of the Income Tax Act, 1961 and the specific paragraphs of the order under challenge, it is submitted by Mr. Chanderpal that there was no jurisdictional error and the a .....

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