AMAR H MANJREKAR, v. ASST CIT CIR 42,

MA 592/MUM/2010 | 2005-2006
Pronouncement Date: 30-09-2011 | Result: Dismissed

Appeal Details

RSA Number 59219924 RSA 2010
Assessee PAN AFGPM5599H
Bench Mumbai
Appeal Number MA 592/MUM/2010
Duration Of Justice 11 month(s) 22 day(s)
Appellant AMAR H MANJREKAR,
Respondent ASST CIT CIR 42,
Appeal Type Miscellaneous Application
Pronouncement Date 30-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 30-09-2011
Assessment Year 2005-2006
Appeal Filed On 08-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A BEFORE SHRI D.K.AGARWAL (JM) & SHRI J. SUDHAKAR RED DY (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 13-601 VINTAGE PEARL 29 TH ROAD BANDRA WEST MUMBAI-400 050. PAN : AFGPM5599H V/S. ACIT CIRCLE 42 MUMBAI. 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 13-601 VINTAGE PEARL 29 TH ROAD BANDRA WEST MUMBAI-400 050. PAN : AFGPM5586G VS. ACIT CIRCLE 42 MUMBAI. 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 R ECORD IN THE ORDER OF THE TRIBUNAL DATED 9.3.2010. THE TRIBUNAL HAS PASS ED 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. MANJR EKAR AND AS THE OTHER ASSESSEE ADOPTED THAT M.A. AS WELL AS SUBMISSIONS I N THE CASE OF SHRI AMAR H. MANIREKAR FOR THE SAKE OF CONVENIENCE THE Y 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 AP PEARED ON BEHALF OF THE ASSESSEE DESPITE ISSUAL OF NOTICE. THERE IS NO REQUEST FOR AN SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 2 ADJOURNMENT EITHER. ONE MORE ADJOURNMENT WAS GRANTE D AND A FRESH NOTICE WAS ISSUED POSTING THE CASE ON 9.9.2011. TH ERE IS NO RESPONSE THIS TIME ALSO. MR. S.K. SINGH THE LEARNED DEPARTM ENTAL REPRESENTATIVE TOOK THIS BENCH THROUGH THE M.AS FILED AND REITERA TED 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 T HE OPINION THAT THERE IS NOTHING MORE FOR THE ASSESSEE TO ADD TO THE ARGU MENTS OF SHRI N.M. PORWAL MADE ON 07-01-2011. HENCE WE CLOSED THE HEA RING AS NO USEFUL PURPOSE WOULD BE SERVED BY ADJOURNING THE MATTER ON CE AGAIN AND PROCEED TO DISPOSE OF THE MATTER.. 2. WE HAVE HEARD SHRI N.M. PORWAL LEARNED AUTHORIS ED REPRESENTATIVE ON BEHALF OF THE ASSESSEE AND SHRI A SHIMA GUPTA AS WELL AS SHRI S.K. SINGH LEARNED DR ON BEHALF OF THE REV ENUE. 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 AP PLICATIONS WE HOLD AS FOLLOWS :- THE ASSESSEE HAS EXTRACTED PARAGRAPH 11 TO 13 OF T HE TRIBUNAL ORDER IN THE FIRST 11 PAGE OF THE MISCELLANEOUS APP LICATION. THEREAFTER HE STRONGLY DISPUTED THE FINDINGS OF THE TRIBUNAL ON T HE 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 COU NSEL ADVISED HIM TO RETRACT BASED ON CERTAIN SUPREME COURT AND H IGH COURT DECISION ON THE SUBJECT. THE CONTENTION OF THE HON'BLE BENCH IS THAT THE APPLICANT HAS RETRACTED NOT BECAUSE OF SOM E FACTUAL INACCURACIES IN THE STATEMENT BUT HE HAS RETRACTED MERELY FOR THE SAKE OF AVAILING THE RIGHT TO RETRACT WHICH IS CON TRARY TO FACTS OF THE CASE. THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER DATED 29 TH DECEMBER 2006 FOR THE A.Y. 2004-05 SIMPLY ADDED A SUM OF ` 8 00 000/- AS UNDISCLOSED INCOME DECLARED BY THE AP PELLANT AT THE TIME OF SEARCH GIVING BREAK-UP OF THE SAME IN HIS S TATEMENT RECORDED ON 20 TH NOVEMBER 2004 FOR THE A.Y. 2004-05 WITHOUT BRINGING ANY INDEPENDENT MATERIAL AFTER MAKING ENQU IRIES AND INVESTIGATIONS INTO THE SAME. IN FACT THE DEPARTMEN T HAD ISSUED SUMMONS U/S. 131 AND HAD RECORDED THE STATEMENTS OF VARIOUS PURCHASERS OF PLOTS/SHOPS/RESIDENTIAL FLATS ETC. AN D HAD RECORDED THEIR STATEMENTS. THE ASSESSING OFFICER DID NOT DIS CUSS THIS IN THE ASSESSMENT ORDER. IF HE HAD BROUGHT THIS MATERIAL ON RECORD IT WOULD NOT HAVE BEEN POSSIBLE FOR HIM TO MAKE ADDITI ONS BASED ON THE STATEMENT RECORDED OF THE APPELLANT ON 20 TH NOVEMBER 2004. SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 3 THE ASSESSING OFFICER WAS REQUIRED U/S. 142(3) TO B RING ON RECORD THE FACT OF HAVING ISSUED THE SUMMONS AND RECORDED THE STATEMENTS OF VARIOUS PURCHASERS OF PLOTS/SHOPS/RES IDENTIAL 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 CH UNILAL MEHTA WHO INFORMED THE APPELLANT THAT THEY HAD RECEIVED S UMMONS FROM THE DEPARTMENT U/S. 131 AND HIS STATEMENT WAS RECOR DED. 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 COPI ES OF THE SAME TO THE APPELLANT . ALTHOUGH THE ASSESSING OFFICER WAS KNOWING WHILE PASSING THE ASSESSMENT ORDER DATED 29 TH DECEMBER 2006 THAT THE STATEMENT RECORDED OF THE APPELLANT O N 20 TH NOVEMBER 2004 IS FACTUALLY INCORRECT HE MADE THE ADDITIONS IN THE ASSESSMENT ORDER WITHOUT HAVING BROUGHT THE SAI D 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 RECORDE D OF THE APPELLANT ON 20 TH NOVEMBER 2004 WHICH IS CONTRARY TO THE BOARD CIRCULAR NO. 286/2/2003/IT(INV.) DATED 10 TH MARCH 2003 STATING THAT ADDITIONS SHOULD NOT BE MADE MERELY ON THE STR ENGTH OF ADMISSION. THE ASSESSING OFFICER SHOULD CARRY ON FU RTHER INVESTIGATION AND BASE THE ADDITIONS ON EVIDENCES G ATHERED. IF THE CONTENTS OF THE SAID BOARD CIRCULAR ARE MADE APPLIC ABLE TO THE FACTS OF THE APPELLANTS CASE THE ASSESSING OFFICE R 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 DEN IED HAVING PAID ANY ON-MONEY TO THE APPELLANT PROVES THE DISHONESTY OF THE ASSESSING OFFICER. (EMPHASIS OWN) IMMEDIATELY AFTER THE SECOND STATEMENT OF THE APPLI CANT WAS RECORDED ON 23 RD DECEMBER 2004 THE DEPARTMENT ISSUED SUMMONS U/S. 131 TO THE VARIOUS CUSTOMERS I.E. PLOT PURCHASERS OFFICE PREMISES PURCHASERS AS WELL AS THE RESIDENTI AL FLAT PURCHASERS AND RECORDED THEIR STATEMENTS APPEARING IN PAPER BOOK VOLUME VI AT PAGE NOS. 460 TO 547 BASED ON WH ICH LEARNED CIT(A) GAVE HIS FINDINGS IN HIS ORDER DATED 14 TH AUGUST 2007 ON PAGE NO. 21 TO 22 READING AS UNDER :- IN THE AFORESAID CASE ALSO ASSESSING OFFICER HAD M ADE ADDITION ON THE BASIS OF STATEMENT AND HAD NOT CARR IED OUT ANY FURTHER INVESTIGATION INTO THE MATTER WHICH COU LD 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 SU MMONS 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 SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 4 4. SANJAY PANDHARINATH PAWAR 5. SURESH THOUGH ASSESSING OFFICER HAS NOT DISCUSSED THIS ASP ECT IN THE ASSESSMENT ORDER BUT THE APPELLANTS A/R IN THE PAPER BOOKS FILED BEFORE ME HAS ENCLOSED THE COPY OF STAT EMENT OF VARIOUS PERSONS RECORDED BY THE DDIT(INV) UNDER SEC TION 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 FURT HER 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 VARIO US CUSTOMERS I.E. PLOT PURCHASERS OFFICE PREMISES PUR CHASERS AS WELL AS THE RESIDENTIAL FLAT PURCHASERS PROVE THAT THE RETRACTION LETTER GIVEN BY THE APPLICANT WAS ACCURATE TO THE EFFECT T HAT THERE WAS NO UNDISCLOSED INCOME/ON-MONEY TO THE EXTENT OF ` 1.5 CRORES. THUS RETRACTION LETTER GIVEN BY THE APPLICANT IS FACTUAL LY CORRECT AND VALIDLY CORROBORATED WITH THE HELP OF SUMMONS ISSUE D AND STATEMENT RECORDED OF VARIOUS PARTIES CONFIRMING TH AT 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 IN DUCEMENT. 4. A PERUSAL OF THE ABOVE SUBMISSION CLEARLY DEMONS TRATE THAT WHAT THE ASSESSEE IS DISPUTING IS THE FINDING OF THE TRI BUNAL THAT THE RETRACTION MADE IS NOT THE VALID ONE. A PLANE READI NG OF THE M.A. DEMONSTRATES THAT WHAT IS SOUGHT TO BE ACHIEVED BY THE ASSESSEE BY FILING THIS MISCELLANEOUS APPLICATION IS A FRESH A DJUDICATION OF THE ISSUE IN HIS FAVOUR AND A REVIEW OF THE DECISION BY CRITI CISING THE REASONING AND BY DISPUTING THE CONCLUSION DRAWN BY THE BENCH IN T HE ORDER. SUCH ATTEMPT CANNOT SUCCEED. FACTUALLY WHEN ONLY 5 CUSTOMERS WERE EXAMINED BY T HE INVESTIGATION WING DURING THE COURSE OF SEARCH OR THEREAFTER IT HAS BEEN REPRESENTED THAT ALL THE CUSTOMERS WERE EXAMINED. T HIS IS A WRONG STATEMENT MADE IN THIS M.A. IN LATER PART OF THE MISCELLANEOUS APPLICATION SU BSTANTIAL ARGUMENTS ARE MADE AND NUMEROUS CONTENTIONS ARE RAI SED BY THE SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 5 ASSESSEE TO DEMONSTRATE THAT THE CONCLUSION ARRIVE D 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 PARA GRAPH 20 AFTER EXTRACTING AT LENGTH FROM VARIOUS ORDERS THE ASSES SEES 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 BELAT ED RETRACTION HAS PREVENTED THE ASSESSING AUTHORITY FROM CONDUCTI NG NECESSARY ENQUIRIES AND INVESTIGATIONS INTO THE MATTER IS MIS TAKE APPARENT ON RECORD. 5. IN OUR OPINION THIS SUBMISSION IS DEVOID OF MERI T. AS ALREADY STATED THE ASSESSEE DOES NOT SEEM TO UNDERSTAND TH E 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 CONTEN TIONS 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 MISCELLA NEOUS 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 OF FICER FOR FRESH ADJUDICATION ON ACCOUNT OF THE FACT THAT THERE WAS BELATED RETRACTION ON 9 TH OCTOBER 2006 AND SINCE THE ASSESSMENT WAS TO BE COMPLETED BY 31 ST DECEMBER 2006 HON'BLE MEMBERS CONCLUDED THAT THE ASSESSING AUTHORITY HAD NO TIME FOR CONDUCTING NECESSARY ENQUIRIES AND INVESTIGATIONS I NTO THE MATTER. THUS TO ENABLE THE ASSESSING OFFICER TO CONDUCT NE CESSARY ENQUIRIES AND INVESTIGATIONS HON'BLE MEMBERS SET A SIDE THE ORDER OF LEARNED CIT(A) AND REMANDED THE MATTER TO THE FI LE 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 9 TH OCTOBER 2006 THE ASSESSING AUTHORITY HAD BARELY 2 & 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 APPLICATI ON AND IN THE FIRST SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 6 TWO PARAGRAPHS OF PAGE 27 OF THE MISCELLANEOUS APPL ICATION IT IS STATED AS FOLLOWS :- THE MOST TRAGIC PART OF THE STORY IS THAT ALTHOUGH THE DEPARTMENT/ASSESSING AUTHORITIES HAVE CONDUCTED ENQ UIRIES AND INVESTIGATION AND RECORDED STATEMENTS OF VARIOUS CU STOMERS 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 TH E 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 EXAMI NED 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 ASS ESSING OFFICER AFTER REJECTING THE RETRACTION BY THE ASSESSEE THOUGHT I T FIT TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE AS WELL AS TO THE REVE NUE TO DECIDE THE MATTER AFTER CONSIDERING FRESH EVIDENCE. SUCH BENEV OLENCE SHOWN BY THE TRIBUNAL TO THE ASSESSEE IS FROWNED UPON. IN OUR CO NSIDERED VIEW IT IS NOT LEGAL TO RECALL THE MATTER AND READJUDICATE THE SAM E 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 DE CISION 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 APPELLANTS CASE ALSO AS THERE IS NO INCRIMINATING MATERIAL FOUND AND SEIZED AND ADDITIONS ARE MADE MERELY ON THE BAS IS OF THE STATEMENT RECORDED OF THE APPLICANT WHICH WAS SUBSE QUENTLY RETRACTED WITH THE HELP OF INDEPENDENT AND RELIABLE EVIDENCE I.E. SUMMONS ISSUED AND STATEMENT RECORDED OF VARIOUS PA RTIES CONFIRMING THAT THERE IS NO ON-MONEY INVOLVED IN TH IS CASE. 8. AGAIN THE ASSESSEE IS SEEKING REVIEW OF THE DECI SION WHICH IS NOT PERMISSIBLE THAT TOO BY MAKING WRONG AND FACTUALLY INCORRECT REPRESENTATION. THIS IS A CASE WHERE THE ASSESSEE H IMSELF HAS GIVEN TWO SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 7 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 M ONEY AS SALE PROCEEDS WHAT FURTHER EVIDENCE IS REQUIRED IN THE MATTER. NO SUCH CONFESSION WAS MADE IN THE CASE OF ANIL KHIMANI (S UPRA) 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 T HE ASSESSEE CAN AGITATE BEFORE THE HONBLE HIGH COURT AND NOT U/S 2 54(2) OF THE ACT. 9. IN THIS M.A. THE ASSESSEE REPEATEDLY REFERRED T O THE WORDS CONTENTIONS OF THE BENCH MOST TRAGIC PART ETC. MR. N.M. PORWAL BEING A ADVOCATE OF LONG STANDING SHOULD HAVE ENSU RED THAT SUCH WORDS SHOULD HAVE NEVER BEEN USED. WHAT IS GIVEN IN A JUD GMENT OR IN AN ORDER ARE NOT CONTENTIONS OF THE BENCH BUT ARE THE DECISI ONS AND/OR FINDINGS OF THE BENCH. AS ALREADY STATED THERE IS A MISREPR ESENTATION IN THIS CASE. DURING THE ARGUMENTS OF THE CASE THE LEARNED COUNS EL SUBMITTED THAT THE RETRACTION WAS BASED ON A LEGAL ADVISE OF CERTA IN 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 S TANDING WE EXPECT THAT THE ENTIRE M.A. WOULD HAVE BEEN READ AND VETTE D 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 POSIT ION IN LAW. THE ASSESSEE IN THIS APPLICATION GOES TO THE EXTENT O F 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 MEMBE RS 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 SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 8 CASE HAS TO NECESSARILY GO AGAINST ONE OF THE PARTI ES TO THE DISPUTE AND WHEN IT SO HAPPENS THE PARTIES ARE EXPECTED TO ACC EPT THE DECISION WITH GRACE OR TO CARRY THE MATTER IN FURTHER APPEAL BEFO RE THE HONBLE HIGH COURT IF THEY BELIEVE THAT THERE IS AN ERROR. INST EAD 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 BEHAVI OR 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 FE EL 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. THI S COURT HELD THAT 'THE COURTS CANNOT BE COMPELLED TO GIVE 'COMMAND ORDERS' . THE ACT COMMITTED AMOUNTS TO DELIBERATE INTERFERENCE WITH T HE DISCHARGE OF DUTY OF A JUDICIAL OFFICER BY INTIMIDATION APART FROM SC ANDALIZING 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 EFFE CT 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 POL ICE THE PRESIDING OFFICERS OF THE COURTS ARE TO BE ASSAULTED AND HUMI LIATED 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) L IGHT BY THEIR CONDUCT AND ACTIONS. THE POOR UNEDUCATED AND EXPLOITED MAS S OF THE PEOPLE NEED A HELPING HAND FROM THE LEGAL PROFESSION ADMITTEDL Y ACKNOWLEDGED AS A MOST RESPECTABLE PROFESSION. NO EFFORT SHOULD BE MA DE OR ALLOWED TO BE MADE BY WHICH A LITIGANT COULD BE DEPRIVED OF HIS R IGHTS STATUTORY AS WELL AS CONSTITUTIONAL BY AN ADVOCATE ONLY ON ACCOUNT O F THE EXALTED POSITION CONFERRED UPON HIM UNDER THE JUDICIAL SYSTEM PREVAL ENT 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 S HOULD YIELD TO SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 9 PRESSURE TACTICS OR BOYCOTT CALLS OR ANY KIND OF BR OWBEATING. THE BENCH AS WELL AS THE BAR HAS TO AVOID UNWARRANTED SITUATI ONS OR TRIVIAL ISSUES THAT HAMPER THE CAUSE OF JUSTICE AND ARE IN THE INT EREST OF NONE. IN THE CASE OF AJAY KUMAR PANDEY ADVOCATE IN RE: (1998) 7 SCC 248 THE ADVOCATE WAS CHARGED OF CRIMINAL CONTEMPT OF CO URT FOR THE USE OF INTEMPERATE LANGUAGE AND CASTING UNWARRANTED ASPERS IONS ON VARIOUS JUDICIAL OFFICERS AND ATTRIBUTING MOTIVES TO THEM W HILE 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 FO R PREVENTING THE JUDGES OF THE SUBORDINATE JUDICIARY OR THE HIGH COU RT FROM BEING SUBJECTED TO SCURRILOUS AND INDECENT ATTACKS WHICH SCANDALISE OR HAVE THE TENDENCY TO SCANDALISE OR LOWER OR HAVE THE TE NDENCY TO LOWER THE AUTHORITY OF ANY COURT AS ALSO ALL SUCH ACTIONS WHI CH INTERFERE OR TEND TO INTERFERE WITH THE DUE COURSE OF ANY JUDICIAL PROCE EDINGS OR OBSTRUCT OR TEND TO OBSTRUCT THE ADMINISTRATION OF JUSTICE IN A NY OTHER MANNER. NO AFFRONT TO THE MAJESTY OF LAW CAN BE PERMITTED. THE FOUNTAIN OF JUSTICE CANNOT BE ALLOWED TO BE POLLUTED BY DISGRUNTLED LIT IGANTS. THE PROTECTION IS NECESSARY FOR THE COURTS TO ENABLE THEM TO DISCH ARGE THEIR JUDICIAL FUNCTIONS WITHOUT FEAR. ' IN CHETAK CONSTRUCTION LTD. VS. OM PRAKASH & ORS. (1998) 4 SCC 577 THIS COURT DEPRECATED THE PRACTICE OF MAKING ALLEGA TIONS AGAINST THE JUDGES AND OBSERVED AS UNDER: 'INDEED NO LAWYER OR LITIGANT CAN BE PERMITTED TO BROWBEAT THE COURT OR MALIGN THE PRESI DING 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 PE RMITTED AND IN THE RESULT ADMINISTRATION OF JUSTICE WOULD BECOME A CASUALTY A ND RULE OF LAW WOULD RECEIVE A SETBACK. THE JUDGES ARE OBLIGED TO DECIDE CASES IMPARTIALLY AND WITHOUT ANY FEAR OR FAVOUR. LAWYERS AND LITIGANTS C ANNOT BE ALLOWED TO 'TERRORIZE' OR 'INTIMIDATE' JUDGES WITH A VIEW TO ' SECURE' ORDERS WHICH THEY WANT. THIS IS BASIC AND FUNDAMENTAL AND NO CIV ILISED 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 F REEDOM OF EXPRESSION. IT IS A PRACTICAL MANIFESTATION OF THE PRINCIPLE OF FREEDOM OF SPEECH. FREEDOM OF EXPRESSION IN ARGUMENTS ENCOURAG ES 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 RI GHTS FREEDOM OF EXPRESSION THEREFORE IS ONE OF THE BASIC CONDITIO NS FOR THE PROGRESS OF ADVOCACY AND FOR THE DEVELOPMENT OF EVERY MAN INCLU DING LEGAL FRATERNITY PRACTISING THE PROFESSION OF LAW. FREEDOM OF EXPRES SION THEREFORE IS VITAL SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 10 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 AN D ORDER IN THE COURT PROCEEDINGS OR JUDICIAL PROCESSES. ANY ADVERSE OPIN ION ABOUT THE JUDICIARY SHOULD ONLY BE EXPRESSED IN A DETACHED MA NNER 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 AD VOCATE 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 QUES TION COULD HAVE BEEN PUT TO HIM AND THAT HE WILL GET THE HIGH COURT JUDG E TRANSFERRED OR SEE THAT IMPEACHMENT MOTION IS BROUGHT AGAINST HIM IN P ARLIAMENT. THIS COURT WHILE SENTENCING HIM TO SIMPLE IMPRISONMENT F OR 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 FUNC TION 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 H IS DUTIES IN BOTH THE CAPACITIES. IT IS HOWEVER NECESSARY TO OBSERVE TH AT BY INDULGING IN THE SAID ACTS HE HAS POSITIVELY ABUSED HIS POSITION BO TH AS A LAWYER AND AS AN OFFICER OF THE COURT AND HAS DONE DISTINCT DISS ERVICE TO THE LITIGANTS IN GENERAL AND TO THE PROFESSION OF LAW AND THE ADMINI STRATION 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 COUR T OVERRULED IN RE: VINAY CHANDRA MISHRA (THE ALLEGED CONTEMNER) AND HE LD AS UNDER: 'THE POWER OF THE SUPREME COURT TO PUNISH FOR CONTE MPT OF COURT THOUGH QUITE WIDE IS YET LIMITED AND CANNOT BE EXP ANDED TO INCLUDE THE POWER TO DETERMINE WHETHER AN ADVOCATE IS ALSO GUIL TY OF 'PROFESSIONAL MISCONDUCT' IN A SUMMARY MANNER WHICH CAN ONLY BE D ONE UNDER THE PROCEDURE PRESCRIBED IN THE ADVOCATES ACT. THE POWE R TO DO COMPLETE JUSTICE UNDER ARTICLE 142 IS IN A WAY CORRECTIVE P OWER 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 SUM MARY MANNER WHILE DEALING WITH A CASE OF CONTEMPT OF COURT.' SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 11 IT ALSO OPINED THAT:- 'AN ADVOCATE WHO IS FOUND GUILTY OF CONTEMPT OF COU RT MAY ALSO AS ALREADY NOTICED BE GUILTY OF PROFESSIONAL MISCONDU CT IN A GIVEN CASE BUT IT IS FOR THE BAR COUNCIL OF THE STATE OR BAR COUNC IL OF INDIA TO PUNISH THAT ADVOCATE BY EITHER DEBARRING HIM FROM PRACTICE OR SUSPENDING HIS LICENCE AS MAY BE WARRANTED IN THE FACTS AND CIRC UMSTANCES OF EACH CASE. THE LEARNED SOLICITOR GENERAL INFORMED US THA T THERE HAVE BEEN CASES WHERE THE BAR COUNCIL OF INDIA TAKING NOTE OF THE CONTUMACIOUS AND OBJECTIONABLE CONDUCT OF AN ADVOCATE HAD INITI ATED 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 TH AT 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 T AKEN APPROPRIATE ACTION AGAINST SUCH AN ADVOCATE. UNDER ARTICLE 144 OF THE CONSTITUTION 'ALL AUTHORITIES CIVIL AND JUDICIAL IN THE TERRIT ORY OF INDIA SHALL ACT IN AID OF THE SUPREME COURT. THE BAR COUNCIL WHICH PERFORM S A PUBLIC DUTY AND IS CHARGED WITH THE OBLIGATION TO PROTECT THE D IGNITY OF THE PROFESSION AND MAINTAIN PROFESSIONAL STANDARDS AND ETIQUETTE I S 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 JU STICE.....' 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 RESPO NSIBLE TO UPHOLD THE DIGNITY OF THE COURTS AND THE MAJESTY OF LAW AND PR EVENT ANY INTERFERENCE IN THE ADMINISTRATION OF JUSTICE. LEARNED COUNSEL F OR THE PARTIES PRESENT BEFORE US DO NOT DISPUTE AND RIGHTLY SO THAT WHENEV ER A COURT OF RECORD RECORDS ITS FINDINGS ABOUT THE CONDUCT OF AN ADVOCA TE WHILE FINDING HIM GUILTY OF COMMITTING CONTEMPT OF COURT AND DESIRES OR REFERS THE MATTER TO BE CONSIDERED BY THE CONCERNED BAR COUNCIL APPROPR IATE ACTION SHOULD BE INITIATED BY THE CONCERNED BAR COUNCIL IN ACCORD ANCE WITH LAW WITH A VIEW TO MAINTAIN THE DIGNITY OF THE COURTS AND TO U PHOLD 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 TE NDENCY AMONGST SOME OF THE ADVOCATES OF ADOPTING A DEFIANT ATTITUDE AND CASTING ASPERSIONS HAVING FAILED TO PERSUADE THE COURT TO GRANT AN ORD ER IN THE TERMS THEY EXPECT. HOLDING THE ADVOCATES GUILTY OF CONTEMPT T HIS COURT OBSERVED AS UNDER: SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 12 'THE TENDENCY OF MALIGNING THE REPUTATION OF JUDICI AL 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 B UD. AND WHEN A MEMBER OF THE PROFESSION RESORTS TO SUCH CHEAP GIMMICKS WI TH A VIEW TO BROWBEATING THE JUDGE INTO SUBMISSION IT IS ALL TH E MORE PAINFUL. WHEN THERE IS A DELIBERATE ATTEMPT TO SCANDALISE WHICH W OULD SHAKE THE CONFIDENCE OF THE LITIGATING PUBLIC IN THE SYSTEM T HE DAMAGE CAUSED IS NOT ONLY TO THE REPUTATION OF THE CONCERNED JUDGE BUT A LSO TO THE FAIR NAME OF THE JUDICIARY VEILED THREATS ABRASIVE BEHAVIOR U SE 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 RA ISE LARGER ISSUES TOUCHING THE INDEPENDENCE OF NOT ONLY THE CONCERNED JUDGE BUT THE ENTIRE INSTITUTION. THE FOUNDATION OF OUR SYSTEM WH ICH IS BASED ON THE INDEPENDENCE AND IMPARTIALITY OF THOSE WHO MAN IT W ILL BE SHAKEN IF DISPARAGING AND DEROGATORY REMARKS ARE MADE AGAINST THE PRESIDING JUDICIAL OFFICERS WITH IMPUNITY. IT IS HIGH TIME TH AT WE REALISE THAT THE MUCH CHERISHED JUDICIAL INDEPENDENCE HAS TO BE PROT ECTED NOT ONLY FROM THE EXECUTIVE OR THE LEGISLATURE BUT ALSO FROM THOS E 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 APOLOG Y FROM A CONTEMNOR SHOULD ONLY BE A MATTER OF EXCEPTION AND NOT THAT O F A RULE AND EXPRESSED ITS OPINION AS UNDER: '6. WE DO NOT THINK THAT MERELY BECAUSE THE APPELLA NT 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 D O IS TO GO AHEAD AND SCANDALIZE HIM AND LATER ON TENDER A FORMAL EM PTY APOLOGY WHICH COSTS HIM PRACTICALLY NOTHING. IF SUCH AN APOLOGY W ERE TO BE ACCEPTED AS A RULE AND NOT AS AN EXCEPTION WE WOULD IN FACT B E VIRTUALLY ISSUING A 'LICENCE' TO SCANDALIZE COURTS AND COMMIT CONTEMPT OF COURT WITH IMPUNITY. IT WILL BE RATHER DIFFICULT TO PERSUADE M EMBERS 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 MAK ING RECKLESS ALLEGATIONS IF THE JUDGE GOES AGAINST HIS WISHES. I F THIS SITUATION WERE TO BE COUNTENANCED ADVOCATES WHO CAN COW DOWN THE JUD GES 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 M AINTAINING 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 VE RY NATURE OF HIS WORK SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 13 HE HAS TO DECIDE MATTERS AGAINST ONE OR OTHER OF TH E 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 SOMEW HERE SOME DAY BY SOMEONE. THAT IS WHY THE COURT IS IMPELLED TO ACT ( RATHER THAN MERELY SERMONIZE) MUCH AS THE COURT DISLIKES IMPOSING PUN ISHMENT WHILST EXERCISING THE CONTEMPT JURISDICTION WHICH NO DOUB T HAS TO BE EXERCISED VERY SPARINGLY AND WITH CIRCUMSPECTION. WE DO NOT T HINK 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 A RE FULLY AWARE THAT IT IS NOT VERY DIFFICULT TO SHOW MAGNANIMITY WHEN S OMEONE ELSE IS THE VICTIM RATHER THAN WHEN ONESELF IS THE VICTIM. TO P URSUE 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 ADHER E TO THE NAIL-STUDDED PATH OF DUTY. INSTITUTIONAL PERSPECTIVE DEMANDS THA T CONSIDERATIONS OF POPULISM ARE NOT ALLOWED TO OBSTRUCT THE PATH OF DU TY. WE THEREFORE CANNOT TAKE A LENIENT OR INDULGENT VIEW OF THIS MAT TER. WE DREAD THE DAY WHEN A JUDGE CANNOT WORK WITH INDEPENDENCE BY REASO N OF THE FEAR THAT A DISGRUNTLED MEMBER OF THE BAR CAN PUBLICLY HUMILI ATE HIM AND HEAP DISGRACE ON HIM WITH IMPUNITY IF ANY OF HIS ORDERS OR THE DECISION RENDERED BY HIM DISPLEASES ANY OF THE ADVOCATES A PPEARING 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 O PINED THAT THERE IS NO DOUBT THAT THE BAR AND THE BENCH ARE AN INTEGRAL PA RT OF THE SAME MECHANISM WHICH ADMINISTERS JUSTICE TO THE PEOPLE. MANY MEMBERS OF THE BENCH ARE DRAWN FROM THE BAR AND THEIR PAST ASS OCIATION 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 BR EEDS COURTESY AND JUST AS CHARITY HAS TO BEGIN AT HOME COURTESY MUST BEGI N 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 R EMEMBER THAT SUCH FLAGRANT VIOLATIONS OF PROFESSIONAL ETHICS AND CULT URED CONDUCT WILL ONLY RESULT IN THE ULTIMATE DESTRUCTION OF A SYSTEM WITH OUT WHICH NO DEMOCRACY CAN SURVIVE. IN LALIT MOHAN DAS VS. ADVOCATE GENERAL ORISSA & ANOT HER 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 M AY ASK FOR A REVIEW OF THAT ORDER. AT THE SAME TIME A MEMBER OF THE BAR I S AN OFFICER OF THE COURT AND OWES A DUTY TO THE COURT IN WHICH HE IS A PPEARING. HE MUST UPHOLD THE DIGNITY AND DECORUM OF THE COURT AND MUS T NOT DO ANYTHING TO BRING THE COURT ITSELF INTO DISREPUTE. THE APPEL LANT BEFORE US GROSSLY OVERSTEPPED THE LIMITS OF PROPRIETY WHEN HE MADE IM PUTATIONS OF PARTIALITY AND UNFAIRNESS AGAINST THE MUNSIF IN OPE N COURT. IN SUGGESTING THAT THE MUNSIF FOLLOWED NO PRINCIPLE IN HIS ORDERS THE APPELLANT WAS SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 14 ADDING INSULT TO INJURY BECAUSE THE MUNSIF HAD MER ELY UPHELD AN ORDER OF HIS PREDECESSOR ON THE PRELIMINARY POINT OF JURI SDICTION AND COURT FEES WHICH ORDER HAD BEEN UPHELD BY THE HIGH COURT IN RE VISION. SCANDALIZING THE COURT IN SUCH MANNER IS REALLY POLLUTING THE VE RY 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 JU DICIAL 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 DESI RED ORDER FROM THE SAID OFFICER. A DELIBERATE ATTEMPT TO SCANDALIZE THE COU RT WHICH WOULD SHAKE THE CONFIDENCE OF THE LITIGATING PUBLIC IN THE SYST EM 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 & HARY ANA (1996) 7 SCC 99 AND M.B. SANGHI ADVOCATE VS. HIGH COURT OF PUNJAB & HA RYANA & 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 ADVIS E 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 WHENEV ER AN ADVERSE ORDER IS RECEIVED BY THEM WITH A VIEW TO CRITICISE THE MEMB ERS AND TO ARGUE AGAINST THE FINDINGS AND WITH A VIEW TO PRESSURIS E THE MEMBERS OF THE BENCH. WE DEPRECIATE THIS PRACTICE. 10. IN THE RESULT WE DISMISS ALL THE FOUR MISCELLA NEOUS APPLICATIONS. ORDER HAS BEEN PRONOUNCED ON 30 TH DAY OF SEPTEMBER 2011. SD/- (D.K. AGARWAL) JUDICIAL MEMBER SD/- (J.SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED : 30 TH SEPTEMBER 2011. COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. SHRI AMAR H. MANJREKAR SMT. SHUBHANGI A. MANJREKAR 15 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 TO 27.9.2011 SR. PS 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: