Conduct of the Counsel in making selective reference to the order of the Tribunal in a ‘Very Deceitful Manner’ is ‘Highly Deplorable’: ITAT Bangalore [Read Order]


The Bangalore bench of Income Tax Appellate Tribunal in a recent ruling expressed that the conduct of the counsel in making selective reference to the order of the tribunal in a “very deceitful manner” is “highly deplorable” and it is a clear case of abuse of process of court. the Court found that the submissions of the petitioners was not genuine and it was merely an attempt to re-argue the concluded matters which is liable to be set aside on ground of principle of res judicata. The relevant portions of the decision are discussed below.

The assessee filed a Miscellaneuos application before the Tribunal stating that certain mistakes apparent from record had crept into the Tribunal order dated 12/02/2016 in which the Tribunal has omitted to adjudicate an additional ground raised in the Appeal.The case of the petitioners was that the Tribunal had not been considered the decision in CIT vs. Dr.T.K.Dayalu cited by the petitioners in support of their claims during the course of hearing. According to them, this constitutes a mistake apparent from the face of records and therefore, is liable to be rectified.

As pointed out by the Tribunal in its judgment, the counsel appeared on behalf of the assessee, during the course of hearing of the petitions, had made selective reference to the order of the Tribunal in a “very deceitful manner”. This conduct of the counsel, according to the tribunal, is “highly deplorable.” The Tribunal opined that the petitions are liable to be rejected on this ground was further observed that the petitioner could not prove that the decision in CIT vs. Dr.T.K.Dayaluwas earlier cited by the petitioners during course of proccedings. Further, the petitioners produced a copy of the said decision only at the time of the present petitions.

The Court further noticed the decision of the Bombay High Court in CIT vs. Earnest Exports Ltd.(323 ITR 577) in which it was held that “application under the provisions of sec.254(2) is maintainable only in cases where it was established that specific attention of the bench was drawn to a particular decision and the decision was specifically relied upon but not considered by the Tribunal.”

The Tribunal further found that the present petitions are filed by the petitioners with an intention of re-arguing the matters which were already concluded by the Tribunal. Regarding this, the Tribunal observed that “We find that disregarding the clear finding of this Tribunal on the issues in the appeal, the petitioners had filed the present petitions. It is obvious that this approach of the petitioners is clearly against the principles of res judicata”.

It was further noted by the Tribunal that “It is obvious that such a litigative adventure by the present appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto.”

“That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court”.

While concluding, the Tribunal added that “We highly deplore the attempts of the petitioner to knock the doors of the Tribunal again in the guise of seeking rectification of order alleging that additional ground of appeal was not decided. As mentioned supra, the additional grounds have been specifically adjudicated and a specific finding had been rendered vide para.9 of the impugned order. Attempts made by the petitioners is nothing but clear case of abuse of process of court and in breach of principles of Res Judicata. We condemn this conduct of petitioner in no uncertain terms as it resulted in colossal waste of valuable time of this Tribunal”.

Read the full text of the order below.