Wednesday 11 April 2012

Guidelines for passing orders


1 The order should be self-contained. It may be better, for the sake- completeness if there is as brief description of the assessee, his business method of accounting etc. as a preface to the order, There should be clear recording of the facts as found by the AO, This may by followed by the findings of the first appellate authority against which the appeal is preferred.

2 There should be reference to all the arguments addressed before the bench ad the pages of the paper book, if and which were referred to and the citation is the case – law.

3. It shall be the endeavour of the Members to record clear findings of fact in the order as the tribunal is the ultimate fact – finding body. These findings may be supported by reference to the evidence on record and wherever possible to may be better to refer to the paper-book in which the evidence is compiled.

4. The bench may also give reasons as to how the statutory provision is application to the factual findings. Their reasoning may be supported by reference to the case – law wherever necessary.

5. If it is possible to do so, reproduction of long passages for the order of the income-tax authorities and the case-law may be avoided for sake of brevity. It is generally felt that Members can give a better account of themselves if they explain in their own words. The finding and reasoning contatinded in the orders of the income – tax authorities,. This is not hard and fast rule but it is being suggested not only for the sake of brevity of the order but it may also demonstrate application of mind, There may however be case where the members may feel that it is absolutely essential to reproduce the relevant portions verbatim. In which case it should not be avoided Member may use their discretion in this regard.

6. The Members may, if they consider fit, summarize the c0ontroversy in their own words(instead of merely reproducing the grounds of appeal) which may have the advantage to indicating to the readers that have appreciated and understood the controversy in the right perspective.

7. Members may consider whether it is absolutely necessary to burden the order with long extracts form the judgment. But if they are found necessary to be extracted then the same should be duly acknowledged with proper citation. The citation should be full and clear and should not be unnecessarily abbreviated. If the bench considers a judgment to be not applicable the distinguishing features may be clearly brought out, without superficial.

8. If the Members are following an earlier order of the tribunal either in the case of the same assessee or in some other case, the practice of merely referring to the earlier order and saying that it is followed may not meet the requirement of judicial order. Several High courts have deprecated this practice. Therefore it is absolutely necessary that wherever an earlier order of the Tribunal is being followed, firstly full reference to the order along with details such as the date of the earlier order, the ITA No. name of the assessee, assessment year and the concerned Bench may be given without fail. Further what was the issue before the earlier bench. How, it was resolved, what was the line of reasoning adopted and how the fact match with the facts of the present year and the case before the tribunal, should be at least briefly explained in the order so that it becomes self-contained order and there is no need to call for and look into the earlier order for such details. It may also help the high court before whom an appeal is filed to appreciate the order of the tribunal without reference to the earlier order.

9. The decision of the members should be intelligible to any reader of the order and his can be achieved if the conclusion is explained properly and logically by giving, reasons, supported both the factual finding and the relevant authorities. More than the correctness of the ultimate conclusion which is for the higher courts to decide, it is process of reaching that conclusion which should be considered more important and which should be easily discernible form the order.

10. The practice of using strong or unduly critical expressions and remarks (in the orders) against the actions of the income tax authorities or the argument of the counsel as well as the department representative should be avoided at all costs. Similarly use of intemperate or derogatory language while referring to other orders of the tribunal should also be scrupulously avoided. Member may note that while referring to High courts, the general practice for lower courts or tribunal is to refer to them as “Hon’ble High Court” and not as “learned High Court” which is found used by some Members.

11. When a Member is agreeing with the view taken by the first appellate authority, even then it may be better to give detailed reasons for the conclusion and explain as to why he is agreeing with the order of the first appellate authority mere mentioning of the fact that he is agreeing with the conclusion of the CIT(A) may not suffice and at times it is likely to be termed as non-application of mind by the higher courts.

12. Proper attention may be paid to structuring, paragraphing and sequencing the order. Repetition may be avoided if possible.

13. If after the hearing of the case and while holding discussions or writing the order, any statutory provision or judgment of order is noticed (which was not referred to in the course of the hearing) which is contrary to the impression, if any given the court or which has material bearing on the outcome of the case, the same must be put to the parties by fixing the case for clarification and the order should be passed only after obtaining the clarifications. If is an indispensable requirement of the concept of justice that the parties shall not have the feeling that decision are taken at their back.
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