Income Tax Appellate Tribunal - Mumbai
Shubhangi A Manjrekar , vs Assessee on 9 March, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "A"
Before Shri D.K.Agarwal (JM) & Shri J. Sudhakar Reddy (AM)
M.A.No. 591/Mum/2010 arising out of
I.T.A.No. 6711/Mum/2007 (Assessment year : 2004-05)
M.A.No. 592/Mum/2010 arising out of
I.T.A.No. 6683/Mum/2007 (Assessment year : 2005-06)
Shri Amar H. Manjrekar V/s. ACIT Circle 42,
13-601, Vintage Pearl Mumbai.
29th Road, Bandra West
Mumbai-400 050.
PAN : AFGPM5599H
APPELLANT RESPONDENT
M.A.No. 589/Mum/2010 arising out of
I.T.A.No. 6681/Mum/2007 (Assessment year : 2004-05)
M.A.No. 590/Mum/2010 arising out of
I.T.A.No. 6682/Mum/2007 (Assessment year : 2005-06)
Smt. Shubhangi A. Manjrekar Vs. ACIT Circle 42,
13-601, Vintage Pearl Mumbai.
29th Road, Bandra West
Mumbai-400 050.
PAN : AFGPM5586G
APPELLANT RESPONDENT
Assessee by : Shri N.M. Porwal
Department by : Ms. Ashima Gupta /
Shri S.K. Singh
ORDER
Per J. Sudhakar Reddy, AM:-
These four Miscellaneous Applications are filed by two assessee, on the ground that there are mistakes apparent on record in the order of the Tribunal dated 9.3.2010. The Tribunal has passed a common order in all these four cases. As the assessee has filed a detailed Miscellaneous Application only in the case of Shri Amar H. Manjrekar and as the other assessee adopted that M.A. as well as submissions in the case of Shri Amar H. Manirekar, for the sake of convenience, they are heard together and disposed off by way of this common order. The M.A. was originally heard on 7.1.2011. Mr.N.M. Porwal argued at length on behalf of the assessee and Mr. Ashim Guptha, argued on behalf of the revenue. The case was re-fixed for hearing on 26.8.2011. None appeared on behalf of the assessee despite issual of notice. There is no request for an 2 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar adjournment either. One more adjournment was granted and a fresh notice was issued, posting the case on 9.9.2011. There is no response this time also. Mr. S.K. Singh, the learned Departmental Representative took this bench through the M.A's filed and reiterated the contentions of the Revenue. As none appeared for the assessee on this date, and as there is no request for an adjournment, we are of the opinion that there is nothing more for the assessee to add to the arguments of Shri N.M. Porwal made on 07-01-2011. Hence, we closed the hearing, as no useful purpose would be served by adjourning the matter once again and proceed to dispose of the matter..
2. We have heard Shri N.M. Porwal, Learned Authorised Representative on behalf of the assessee and Shri Ashima Gupta, as well as Shri S.K. Singh, learned DR on behalf of the revenue. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, submissions of Mr. Porwal and Mr Guptha and Mr. Singh, and on consideration of the Miscellaneous Applications, we hold as follows :-
The assessee has extracted paragraph 11 to 13 of the Tribunal order in the first 11 page of the Miscellaneous Application. Thereafter he strongly disputed the findings of the Tribunal on the issue of retraction at pages 12 to 15 the M.A. reads follows :-
"The contention of the Hon'ble Bench is that the Applicant retracted from his statement merely because his counsel advised him to retract based on certain Supreme Court and High Court decision on the subject. The contention of the Hon'ble Bench is that the Applicant has retracted not because of some factual inaccuracies in the statement but he has retracted merely for the sake of availing the right to retract, which is contrary to facts of the case.
The Assessing Officer in his assessment order dated 29th December, 2006 for the A.Y. 2004-05 simply added a sum of ` 8,00,000/- as undisclosed income declared by the Appellant at the time of search giving break-up of the same in his statement recorded on 20th November, 2004 for the A.Y. 2004-05 without bringing any independent material after making enquiries and investigations into the same. In fact the Department had issued summons u/s. 131 and had recorded the statements of various purchasers of plots/shops/residential flats etc. and had recorded their statements. The Assessing Officer did not discuss this in the assessment order. If he had brought this material on record, it would not have been possible for him to make additions based on the statement recorded of the Appellant on 20th November, 2004.3
Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar The Assessing Officer was required u/s. 142(3) to bring on record the fact of having issued the summons and recorded the statements of various purchasers of plots/shops/residential flats etc. Thus, the Assessing Officer has failed to comply with the provisions of section 142(3) of the Income Tax Act, 1961 in not bringing on record the said statements recorded of various purchasers of plots/shops/residential flats. The Appellant happened to meet one of the purchasers of plots/shops/residential flats Shri Sureshchandra Chunilal Mehta who informed the Appellant that they had received summons from the Department u/s. 131 and his statement was recorded. Based on this information the Appellant contacted various purchasers of plots/shops/residential flats etc. and he collected all these statements since the Department was not giving copies of the same to the appellant. Although the Assessing Officer was knowing while passing the assessment order dated 29th December, 2006 that the statement recorded of the Appellant on 20th November, 2004 is factually incorrect, he made the additions in the assessment order without having brought the said material on record wherein all the purchasers have confirmed that they have not paid any on-money in cash to the Appellant. Thus, the additions are simply based on the statement recorded of the Appellant on 20th November, 2004 which is contrary to the Board Circular No. 286/2/2003/IT(Inv.) dated 10th March, 2003 stating that additions should not be made merely on the strength of admission. The Assessing Officer should carry on further investigation and base the additions on evidences gathered. If the contents of the said Board Circular are made applicable to the facts of the Appellant's case, the Assessing Officer cannot make any additions in this case. The hiding of the fact that summons were issued and statements were recorded of all the purchasers of plots/shops/residential flats who denied having paid any on-money to the Appellant proves the dishonesty of the Assessing Officer. (Emphasis own) Immediately after the second statement of the Applicant was recorded on 23rd December 2004, the Department issued summons u/s. 131 to the various customers i.e. plot purchasers, office premises purchasers as well as the residential flat purchasers and recorded their statements, appearing in paper book -Volume VI at page Nos. 460 to 547 based on which learned CIT(A) gave his findings in his order dated 14th August, 2007 on page No. 21 to 22, reading as under :-
"In the aforesaid case also Assessing Officer had made addition on the basis of statement and had not carried out any further investigation into the matter which could prove the facts as admitted in the statement. However in the instant appeal before me the DDIT(Inv) had recorded the statement of various persons as under by issuing summons u/s. 131 of the I.T. Act in order to ascertain the correctness of receiving of on-money by the appellant.
1. Koshore Gandhi
2. Rajendra B. Borale
3. Ramesh Bhagwan Ganbole 4 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar
4. Sanjay Pandharinath Pawar
5. Suresh Though Assessing Officer has not discussed this aspect in the assessment order but the appellant's A/R in the paper books filed before me has enclosed the copy of statement of various persons recorded by the DDIT(Inv) under section 131 of I.T. Act. I have perused these statement and all these persons have categorically denied the payment of on-money to the appellant. Thus even after carrying out further investigation into the issue of receipt of on-money, the Assessing Officer could not muster any evidence on record which would show the appellant has received any on-money against sale of flats/shops/plots." [emphasis own] Thus, based on the above replies given by the various customers i.e. plot purchasers, office premises purchasers as well as the residential flat purchasers, prove that the retraction letter given by the Applicant was accurate to the effect that there was no undisclosed income/on-money to the extent of ` 1.5 crores. Thus, retraction letter given by the Applicant is factually correct and validly corroborated with the help of summons issued and statement recorded of various parties confirming that there is no on-money involved in this case." [emphasis own]
3. Thereafter the assessee relied on the Judgement of Hon'ble Supreme Court in the case of Vinod Solanki Vs Union of India and Another, for the proposition that the assessee need not demonstrate to the hilt that the confession was under threat or inducement.
4. A perusal of the above submission clearly demonstrate that what the assessee is disputing is the finding of the Tribunal, that the retraction made is not the valid one. A plane reading of the M.A. demonstrates that, what is sought to be achieved by the assessee by filing this Miscellaneous Application, is a fresh adjudication of the issue in his favour and a review of the decision by criticising the reasoning and by disputing the conclusion drawn by the Bench in the order. Such attempt cannot succeed.
Factually, when only 5 customers were examined by the Investigation Wing, during the course of search or thereafter, it has been represented that all the customers were examined. This is a wrong statement made in this M.A. In later part of the Miscellaneous Application substantial arguments are made and numerous contentions are raised by the 5 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar assessee, to demonstrate that the conclusion arrived at by the Tribunal are erroneous. These submissions can be made by the assessee in the appellant proceedings before the High Court but not before this Tribunal, in the garb of a Miscellaneous Application. At paragraph 20 after extracting at length from various orders the assessee's contention is as follows :-
"Thus the contention of the Hon'ble Bench that if the retraction was made well in time, then possibly the Assessing Officer would have sufficient time to conduct enquiries and belated retraction has prevented the assessing authority from conducting necessary enquiries and investigations into the matter is mistake apparent on record."
5. In our opinion this submission is devoid of merit. As already stated, the assessee does not seem to understand the difference "finding of the Bench" and "contention of the Bench". The learned Counsel also did not play his advisory role to educate the assessee on a elementary point that, the Bench never makes contentions, but only gives its findings and passes orders.
From page 21 to 24, the statement recorded from the assessee is extracted and thereafter at page 25 in the Miscellaneous Application, it is recorded as follows :-
"The Hon'ble Members set aside the order of learned CIT(A) and remanded the matter to the file of the Assessing Officer for fresh adjudication on account of the fact that there was belated retraction on 9th October, 2006 and since the assessment was to be completed by 31st December, 2006, Hon'ble Members concluded that the Assessing Authority had no time for conducting necessary enquiries and investigations into the matter. Thus, to enable the Assessing Officer to conduct necessary enquiries and investigations, Hon'ble Members set aside the order of learned CIT(A) and remanded the matter to the file of the Assessing Officer for fresh adjudication.
Thus, the sum and substance of the Hon'ble Members' contention is that after the retraction letter was filed on 9th October, 2006, the Assessing Authority had barely 2 & ½ months time to conduct enquiries and investigations which according to the Hon'ble Members was not sufficient."
6. Thereafter arguments made by learned counsel for the assessee Shri N.M. Porwal have been in fact recorded in the M.A. At the last paragraph of page 26 of the Miscellaneous Application and in the first 6 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar two paragraphs of page 27 of the Miscellaneous Application it is stated as follows :-
"The most tragic part of the story is that although the Department/Assessing Authorities have conducted enquiries and investigation and recorded statements of various customers i.e. plot purchasers, office premises purchasers as well as the residential flat purchasers, the Assessing Officer has neither used this material nor made a reference of this material in the Assessing Officer.
It is, therefore, the matter ought to be recalled and heard afresh in its entirety including merits of the case because merits are based on the material available on record after making necessary enquiries and investigations made by the Department." [emphasis own]
7. A perusal of these paragraphs demonstrates that the assessee not only seeks to mislead but also finds fault with the conclusions of the Tribunal for the sole reason that the findings are not in his favour.. The wordings used in the M.A. speak for itself. This is no way to file an M.A. When the facts is that only five persons were examined by the DDIT (Inv), the assessee tries to project as if each and every customer has been examined by the A.O. that too during the assessment proceedings. The Tribunal, instead of upholding the order of the Assessing Officer, after rejecting the retraction by the assessee, thought it fit to give one more opportunity to the assessee' as well as to the revenue, to decide the matter after considering fresh evidence. Such benevolence shown by the Tribunal to the assessee is frowned upon. In our considered view it is not legal to recall the matter and readjudicate the same afresh on merit. The same is not permitted in law as there is no mistake apparent on record.
Further at page 28, the assessee referred to the decision in the case of Anil Khimani Vs. DCIT (supra) and wrote as follows :-
"The ratio of the above order is applicable to the facts of the appellant's case also, as there is no incriminating material found and seized and additions are made merely on the basis of the statement recorded of the Applicant which was subsequently retracted with the help of independent and reliable evidence i.e. summons issued and statement recorded of various parties confirming that there is no on-money involved in this case."
8. Again the assessee is seeking review of the decision, which is not permissible, that too by making wrong and factually incorrect representation. This is a case where the assessee himself has given two 7 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar statements at different points of time, confessing and admitting that he has been receiving unaccounted money on sale. When a person gives a statement and accepts having received unaccounted money as sale proceeds, what further evidence is required in the matter. No such confession was made in the case of Anil Khimani (supra), and that was a case of addition made for low domestic withdrawal. This is not a similar case. Any how, these are matters on merits, which the assessee can agitate before the Hon'ble High Court and not U/S 254(2) of the Act.
9. In this M.A., the assessee repeatedly referred to the words "contentions of the Bench", "most tragic part", etc. Mr. N.M. Porwal, being a Advocate, of long standing should have ensured that such words should have never been used. What is given in a judgment or in an order, are not contentions of the Bench but are the decisions, and/or findings of the Bench. As already stated, there is a misrepresentation in this case. During the arguments of the case, the learned Counsel submitted that the retraction was based on a legal advise of certain counsels and the affidavit says so and when the same is recorded in the order, unnecessary and frivolous objections are raised by way of M.A., casting aspersions on the Bench. The retraction will speak for itself. The concerned persons have to understand that, trying of scandalise the Tribunal, warrants initiation of criminal contempt proceedings. No person reasonably instructed in law would not have filed such on M.A. under section 254(2), as that section permits only correction of mistake apparent on record. Section 254(2) is not an avenue to criticise judgments and the Members of the Tribunal and seek re-adjudication in the matters. Sec 254(2) is not an avenue to express frustration by the party losing his case. Being an Advocate of good standing, we expect that the entire M.A. would have been read and vetted by him.On the facts and circumstances of the case, we had arrived at a particular decision, in the Appeal, which in our view, is the correct position in law. The assessee, in this application, goes to the extent of mentioning that "the Member who wrote this order also wrote the order in the case of Anil Khimani (supra)" thereby attacking him. This sort of language is being used with the intention to browbeat the Members into submission and to ensure that they toe a line of the assessee's counsel. Such acts are most unfortunate and ill-advised. The decision in each and every 8 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar case has to necessarily go against one of the parties to the dispute, and when it so happens, the parties are expected to accept the decision with grace or to carry the matter in further appeal before the Hon'ble High Court, if they believe that there is an error. Instead of doing so, the assessee in these cases, under the guise of filing M.A under section 254(2), have criticized the Member of the Bench by misrepresenting the facts and quoting irrelevant case laws. Such behavior is unpardonable. The M.A. itself runs into 29 pages and this shows that prima-facie the so called mistake, is not mistake apparent on record.
At this stage, on the role of the Advocate, we feel it appropriate to refer to some of the decisions on this matter which would help in understanding the view of the courts..
In the case of Daroga Singh and Others vs. B.K. Pandey, (2004) 5 SCC 26, one Additional District and Sessions Judge was attacked in a pre- planned and calculated manner in his courtroom and chamber by police officials for not passing an order they sought. This Court held that, "The Courts cannot be compelled to give "command orders". The act committed amounts to deliberate interference with the discharge of duty of a judicial officer by intimidation apart from scandalizing and lowering the dignity of the Court and interference with the administration of justice. The effect of such an act is not confined to a particular court or a district, or the State, it has the tendency to effect the entire judiciary in the country. It is a dangerous trend. Such a trend has to be curbed. If for passing judicial orders to the annoyance of the police the presiding officers of the Courts are to be assaulted and humiliated the judicial system in the country would collapse."
In R.D. Saxena vs. Balram Prasad Sharma, (2000) 7 SCC 264, this Court held as under:
"In our country, admittedly, a social duty is cast upon the legal profession to show the people beckon (sic beacon) light by their conduct and actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal profession, admittedly, acknowledged as a most respectable profession. No effort should be made or allowed to be made by which a litigant could be deprived of his rights, statutory as well as constitutional, by an advocate only on account of the exalted position conferred upon him under the judicial system prevalent in the country........"
In Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd., (1999) 1 SCC 37, this Court held that it is the solemn duty of every Court to proceed with judicial function during Court hours and no Court should yield to 9 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar pressure tactics or boycott calls or any kind of browbeating. The Bench as well as the Bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in the interest of none.
In the case of Ajay Kumar Pandey, Advocate, In Re: , (1998) 7 SCC 248, the advocate was charged of criminal contempt of Court for the use of intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to them while discharging their judicial functions. This Court held as under:
"The subordinate judiciary forms the very backbone of administration of justice. This Court would come down a heavy hand for preventing the judges of the subordinate judiciary or the High Court from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear. "
In Chetak Construction Ltd. vs. Om Prakash & Ors., (1998) 4 SCC 577, this Court deprecated the practice of making allegations against the Judges and observed as under: "Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to "terrorize" or "intimidate" Judges with a view to "secure" orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it........"
Similar view has been reiterated in Radha Mohan Lal vs. Rajasthan High Court, (2003) 3 SCC 427.
Advocacy touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection or other fundamental human rights, freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital 10 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar to the maintenance of free society. It is essential to the rule of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial processes. Any adverse opinion about the judiciary should only be expressed in a detached manner and respectful language. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary [vide D.C. Saxena vs. The Hon'ble Chief Justice of India, (1996) 5 SCC 216].
In the matter of In re: Vinay Chandra Mishra (the alleged contemner), (1995) 2 SCC 534, the contemner who was a senior advocate, President of the Bar and Chairman of the Bar Council of India, on being questioned by the Judge started to shout and said that no question could have been put to him and that he will get the High Court Judge transferred or see that impeachment motion is brought against him in Parliament. This Court while sentencing him to simple imprisonment for six weeks suspended him from practising as an advocate for a period of three years and laid down as follows:
"The contemner has obviously misunderstood his function both as a lawyer representing the interests of his client and as an officer of the court. Indeed, he has not tried to defend the said acts in either of his capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject to remind him of his duties in both the capacities. It is, however, necessary to observe that by indulging in the said acts, he has positively abused his position both as a lawyer and as an officer of the Court, and has done distinct disservice to the litigants in general and to the profession of law and the administration of justice in particular."
In the case of Supreme Court Bar Association vs. Union of India & Anr., (1998) 4 SCC 409, a Constitution Bench of this Court overruled In re:
Vinay Chandra Mishra (the alleged contemner) and held as under:
"The power of the Supreme Court to punish for contempt of court, though quite wide, is yet limited and cannot be expanded to include the power to determine whether an advocate is also guilty of "Professional misconduct" in a summary manner which can only be done under the procedure prescribed in the Advocates Act. The power to do complete justice under Article 142 is in a way, corrective power, which gives preference to equity over law but it cannot be used to deprive a professional lawyer of the due process contained in the Advocates Act 1961 by suspending his licence to practice in a summary manner, while dealing with a case of contempt of court."11
Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar It also opined that:-
"An Advocate who is found guilty of contempt of court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings against him and even punished him for "professional misconduct", on the basis of his having been found guilty of committing contempt of court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be, when apprised of the established contumacious conduct of an advocate by the High Court or by this Court, would rise to the occasion, and taken appropriate action against such an advocate. Under Article 144 of the Constitution "all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act "in aid of the Supreme Court ". It must, whenever, facts warrant rise to the occasion and discharge its duties uninfluenced by the position of the contemner advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate which has the tendency to interfere with due administration of justice....." The Bench went on to say :-
".........There is no justification to assume that the Bar Council is would not rise to the occasion, as they are equally responsible to uphold the dignity of the courts and the majesty of law and prevent any interference in the administration of justice. Learned counsel for the parties present before us do not dispute and rightly so that whenever a court of record, records its findings about the conduct of an Advocate while finding him guilty of committing contempt of court and desires or refers the matter to be considered by the concerned Bar Council, appropriate action should be initiated by the concerned Bar Council in accordance with law with a view to maintain the dignity of the courts and to uphold the majesty of law and professional standards and etiquette."
In M.B. & Sanghi, Advocate vs. High Court of Punjab & Haryana, (1991) 3 SCC 600, this Court took notice of the growing tendency amongst some of the Advocates of adopting a defiant attitude and casting aspersions having failed to persuade the Court to grant an order in the terms they expect. Holding the Advocates guilty of contempt, this Court observed as under:
12Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar "The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped fat the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary, Veiled threats, abrasive behavior, use of disrespectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a judge into submission to secure a desired order. Such cases raise larger issues touching the independence of not only the concerned Judge but the entire institution. The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the Presiding Judicial Officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system."
In the case of L.D. Jaikwal v. State of Uttar Pradesh, (1984) 3 SCC 405, it was held by this Court that acceptance of an apology from a contemnor should only be a matter of exception and not that of a rule and expressed its opinion as under:
"6. We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize courts and commit contempt of court with impunity. It will be rather difficult to persuade members of the Bar, who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And no sitting Judge will feel free to decide any matter as per the of his conscience on account of the fear of being scandalized and prosecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down the Judges, and make them fall in line with their wishes, by threats of character assassination and persecution, will be preferred by the litigants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of courts.
7. We have yet to come across a Judge who can take a decision which does not displease one side or the other. By the very nature of his work 13 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar he has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented to by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution. A line has therefore to be drawn somewhere, some day, by someone. That is why the Court is impelled to act (rather than merely sermonize), much as the Court dislikes imposing punishment whilst exercising the contempt jurisdiction, which no doubt has to be exercised very sparingly and with circumspection. We do not think that we can adopt an attitude of unmerited leniency at the cost of principle and at the expense of the Judge who has been scandalized. We are fully aware that it is not very difficult to show magnanimity when someone else is the victim rather than when oneself is the victim. To pursue a populist line of showing indulgence is not very difficult -- in fact it is more difficult to resist the temptation to do so rather than to adhere to the nail-studded path of duty. Institutional perspective demands that considerations of populism are not allowed to obstruct the path of duty. We, therefore, cannot take a lenient or indulgent view of this matter. We dread the day when a Judge cannot work with independence by reason of the fear that a disgruntled member of the Bar can publicly humiliate him and heap disgrace on him with impunity, if any of his orders, or the decision rendered by him, displeases any of the advocates, appearing in the matter. 24) In the case of R.K. Garg Advocate v. State of Himachal Pradesh, (1981) 3 SCC 166, where a lawyer hurled a shoe on the judicial officer which hit him on the shoulder, this Court opined that there is no doubt that the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill-tuned instrument in the setting of a courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.
In Lalit Mohan Das vs. Advocate General, Orissa & Another, AIR 1957 SC 250, this Court observed as under: "A member of the Bar undoubtedly owes a duty to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client. He may even submit that a particular order is not correct and may ask for a review of that order. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute. The appellant before us grossly overstepped the limits of propriety when he made imputations of partiality and unfairness against the Munsif in open Court. In suggesting that the Munsif followed no principle in his orders, the appellant was 14 Shri Amar H. Manjrekar Smt. Shubhangi A. Manjrekar adding insult to injury, because the Munsif had merely upheld an order of his predecessor on the preliminary point of jurisdiction and Court fees, which order had been upheld by the High Court in revision. Scandalizing the Court in such manner is really polluting the very fount of justice; such conduct as the appellant indulged in was not a matter between an individual member of the Bar and a member of the judicial service; if brought into disrepute the whole administration of justice."
A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalize the Court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary. [vide M.Y. Shareef & Anr. Vs. Hon'ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757; Shamsher Singh Bedi vs. High Court of Punjab & Haryana, (1996) 7 SCC 99 and M.B. Sanghi, Advocate vs. High Court of Punjab & Haryana & Ors. (supra)].
10. In view of the above discussion, we are of the considered view that this is a fit case for levy of costs.. Accordingly, we levy cost of `Rs 5,000/- for each, of the four (4) M.As. before us. We advise all concerned to correct themselves in the interest of all and this great institution. We hope that better sense will prevail in future.
10. We are pained to observe the route of filing a Miscellaneous Application U/S 254(2) of the Act is being taken by some of the assessees, at the advise of their Counsels, whenever an adverse order is received by them, with a view to criticise the Members and to argue against the findings, and with a view to pressurise the Members of the bench. We depreciate this practice.
10. In the result, we dismiss all the four Miscellaneous Applications.
Order has been pronounced on 30th day of September 2011.
Sd/- Sd/-
(D.K. AGARWAL) (J.SUDHAKAR REDDY)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated : 30th September 2011.
Copy to : 1. The Appellant
2. The Respondent
3. The CIT(A)-concerned.
15
Shri Amar H. Manjrekar
Smt. Shubhangi A. Manjrekar
4. The CIT, concerned.
5. The DR concerned, Mumbai
6. Guard File
BY ORDER
True copy
ASSTT. REGISTRAR, ITAT, MUMBAI
PS / PJC
Date Initials
1. Draft dictated on: 1.4.2011 Sr. PS
2. Draft placed before author: 5.4.2011 Sr. PS
TO
27.9.2011
3. Draft proposed & placed before the second member: 28.9.2011 VP/JM/AM
4. Draft discussed/approved by Second Member: 28.9.2011 JM/AM
5. Approved Draft comes to the Sr. PS/PS: 28.9.2011 Sr. PS
6. Order pronounced on: 30.9.2011 Sr. PS
7. Order come back to Sr.PS/PS 30.9.2011
8. File sent to the Bench Clerk: 30.9.2011 Sr. PS
9. Date on which file goes to the Head Clerk:
10. Date of dispatch of Order: