The Income-tax Appellate Tribunal is not only the first quasi-judicial Tribunal to be set up in our country but is the longest functioning quasi- judicial Tribunal. It has completed 65 years of very useful life which qualifies it to
be regarded and respected as a senior citizen amongst Tribunals by any measure or standard!

As an individual grows older there is the desire to bring his affairs up to date as he prepares, as it were, for the final judgment from which there are no appeals to any Tribunal. This, however, does not hold good for an institution which is to endure. It is, therefore, difficult to understand why the Income-tax Appellate Tribunal organizes at periodic intervals what is euphemistically termed as a “clearance drive.” The frequency and intensity of such drives shows a steep upward curve as time passes. The last such “programme” terminated in Mumbai on 14th December, 2006 and the next one starts on January 15, 2007! The disposals by the Tribunal compare most favourably with the position in civil litigation and one does not have to prove a point to anybody.

In practice, what happens is that cases of a certain vintage are all placed before designated benches. Experience shows that very often 6 or more cases relating to each of 2 to 4 assessees are placed before the same bench on the same day. There are occasions when 50 to 60 appeals relating to 10 to 12 assessees are fixed for hearing on the same day!

These cases have accumulated partly because on a regular working basis when a heavy matter comes up an effort is made to dispose of other matters before taking it up with the result that when the heavy matter’s time “arrives” there is no time left to dispose it of particularly if the Bench is not to sit in the afternoon as is the normal case. The heavy matter may, thus, get adjourned. For subsequent years there may be a common issue though there are invariably also other independent issues, perhaps equally weighty ones, and on account of the earlier appeal having been adjourned the subsequent ones are also adjourned. All of these then cascade into the “clearance drive” period. It is well nigh impossible for a Bench judicially to dispose of all these matters on one day. The “bunching” also creates confusion both for the representatives of the two parties as well as for the Bench when it comes to write its judgment.

The “policy” decision is to adjourn these to a day during the earmarked disposal period only and not to a date thereafter. This creates a difficulty because –

1. the Board for a day which is already over-loaded, as referred to hereinabove, may become even more unmanageable.
    

2. Initially the matters would have been in different designated Benches and then consolidated before the same Bench. The assessee’s representative would, have planned his diary on the basis of the Bench to which the matter was initially allotted. This creates difficulty in finding time during the disposal period to attend to the later transferred matters.
    

3. Unless one has the benefit of the judgment in the first matter it may be difficult and certainly not advisable to proceed with the subsequent appeals as the reason why they were adjourned from time to time was because of the pending initial matter. Sometimes when an appeal comes up for hearing and it is pointed out that the earlier year’s appeal, in which the identical issue in the same assessee’s case is involved has been heard by another Bench, but the order is awaited, the response is that the Bench would direct that the decision reached by the other Bench should be followed. Even where the earlier year’s appeal is only fixed for hearing at a later date sometimes the same suggestion is offered. Such a response is obviously dictated by the desire to dispose of the appeal. Though undoubtedly such purpose is achieved it is doubtful whether such a procedure is correct as it is tantamount to surrender by the Bench before which the hearing is fixed of its jurisdiction to another Bench.

Apart from these difficulties the fundamental issue is whether there is any necessity in the case of the Income-tax Appellate Tribunal to have such clearance drives. Whereas in 1998-99 the pendency of appeals before the Tribunal was about 3 lakhs, at a recently conducted count the pendency was about 90,000. There are presently 63 functioning Benches in the Tribunal and ten more have been sanctioned. On an average this means arrears of 1,428 pending appeals per Bench. At the conservative rate of disposal of 10 appeals per day per Bench the arrears would be disposed of in less than 30 weeks. It would appear that on an average in the last 4 years about 49,000 appeals are filed every year. This means that the arrears are less than the filings for 2 years. Further, the disposals by the Tribunal in a year exceed the filings for the year by about 50%, i.e., if 100 appeals are filed in a year 150 are disposed of. These being the statistics one wonders whether in the normal course itself the arrears would not automatically be wiped off. It has also to be borne in mind that in the very nature of things a Second Appellate Forum must have a healthy record of arrears as otherwise the forum may find itself out of business. Indeed Parliament itself seems to consider that the normal period during which an appeal should be disposed of is 4 years as is evident from the provisions of sub-section (2A) inserted in section 254 in 1999.

The issue may legitimately be raised as to what is wrong in the Tribunal performing better than what Parliament expects. One consequence which immediately strikes the thinking mind, not obsessed with the present but which takes into account the future from a long-term point of view, is that with the “crash disposal sessions” some of the existing Benches may be rendered surplus and some of the members may find that their appointments, which I understand are for fixed terms, may not be renewed. This is most disturbing as it may create a sense of insecurity. Apart from the issue of disposal drives it is most pernicious to have a judicial appointment for a certain period and not till the normal date of retirement particularly when the appointee has everyday to decide matters wherein one of the parties is the appointor or at least another avatar of the litigant before him (the appointing authority being the Ministry of Law and the litigating party being the Ministry of Finance). It would almost suggest that if the decisions of the “specific tenure member” are not in a certain direction his appointment may not be renewed by the concerned authority. It is a most dangerous instrument in the hands of a capricious Law Ministry.
Another item on the debit side of having these clearance drives is that there is naturally a human desire to bring matters to an end expeditiously as that is the expectation of the powers that be. This sometimes results in a) a matter being treated as concluded by following a cited decision without elaborate consideration which may work adversely to the assessee or the Revenue as the case may be and b) the order not containing a detailed consideration of the issues. There is also the reluctance to take up a matter unless the entire group fixed for hearing can be disposed of on the fixed day as the Bench, quite humanly, feels that it may decide the ‘hard’ First Appeal and another Bench may get the credit for disposal of the following “soft” appeals. This is all the more so because there is the nagging feeling that members have to achieve a certain monthly quota of disposals, though officially this is denied.

The anxiety to dispose of an old matter at an early date sometimes results in a piquant situation. An old matter may have come for hearing on a particular day but adjourned by the Bench by a judicial order to a date three or four months away taking into account the convenience of all concerned. In the meantime a decision is taken to have a clearance drive. There are instances where in the case of old appeals the date fixed by the Division Bench is preponed by an executive or office order only with a view to the appeal being disposed of within the clearance drive period even without an application in this behalf by either party. Such over anxiety to dispose of a matter causes inconvenience and should be avoided. After all the very basis of respect for the judiciary is public support and confidence.

Though not connected with the disposal of an old appeal, reference may be made to a related issue of a change being made in the fixed schedule. An appeal in which stay has been granted may be fixed for hearing on a particular day in the specified Bench after considering the convenience of all concerned. If that Bench does not function on such day, the stay granted appeal is liable to be transferred for disposal to another Bench. The net result is that the Department’s representative in the Bench to which it has been transferred is 9 times out of 10 not in a position to proceed with the hearing as the papers would not have been received by him from the Department’s representative in the Bench to which the appeal was initially assigned. Whilst it is possible for the Department’s representative of the Bench to which the appeal was originally assigned to argue the matter before the transferee Bench it seldom happens that way for various reasons and is something which one has to accept. Very often the transfer of such stay-granted appeal is made by a notice issued in the course of the week of hearing itself. A litigant and his representative on seeing the Board as announced on the preceding Friday would naturally presume that the appeal will not be heard on the originally fixed date as the Bench is not to function and would adjust their schedule accordingly. It is surely not the duty of the concerned party or his representative to scrutinize the Board every day of the week to find out if it is listed before another Bench or to run the risk of the stay being vacated or even an ex parte appellate order. It is overlooked that it is the duty of the Tribunal to make the life of the litigant (whether assessee or Revenue) hassle free. It is overlooked that if the Bench before which the stay-granted matter is fixed is not to function as per the list announced on the preceding Friday the Department would naturally presume that it is not to be heard on the fixed day and the concerned Assessing Officer may not even forward the relevant papers to the office of the concerned Departmental Representative and, hence, the subsequent fixation before another Bench becomes a futile exercise resulting only in inconvenience to all concerned.

The question then arises what is the solution for disposing of old matters because nobody disputes that old matters must be tackled. An alternative which strikes a thinking person, is that an appeal must remain in the Bench to which it was originally allotted but say, five old appeals (not necessarily of the same assessee) must be fixed before each Bench on 2 or 3 days in a week and a notice be put up that normally an application for adjournment for any long period would not be entertained in the case of appeals of the prescribed vintage. The fixation should be on 2 or 3 days in the week so as to leave time for continuance of the hearing on the succeeding day in the same week. A few “new” appeals may be fixed purely as a buffer in case the old ones are not to be heard. Adequate advance notice should be given to the parties so that they are able to adjust their affairs so as not to result in an adjournment. A variation, which of course requires some effort for implementation, is for the office to fix up such old appeals after prior consultation with the parties so as to ensure disposal on the day fixed. Such a procedure is, I am informed followed in the English Courts with the result that only matters which can feasibly be disposed of on a particular day are listed. When such an old matter comes up the Bench may, if the matter is part-heard, consider sitting in the afternoon as is the mandate of rule 86 of the Office Manual issued by the Income-tax Appellate Tribunal viz., that the Court hours extend to the afternoon. I do realize that the Bench cannot on all days function in the afternoons as the members must have time to dictate their orders. However, at least when an old heavy matter comes up or Counsel from outside is to attend to a hearing the prescribed rule should be followed.

By way of better court management and to have a more effective disposal of cases it is suggested that members may be re-located on a temporary basis at places where there are significant arrears compared to the place of their regular posting where there are not such arrears, i.e., a Bench functioning at place X which does not have much pending work should be placed on circuit at place Y where there are arrears. Such placement must be for a minimum period of 2 months as in practice one finds that any lesser period for re-location naturally induces a desire not to take up heavy matters so as not to leave undictated judgments or undecided cases by the time the camp for 1 week or 2 weeks (which is the normal period for a camp at the moment) is over.