ST - Govt is not special litigant - Advocates appearing for Revenue are first officers of Court and ought not to dance to tune of senior level officials: HC
By TIOL News Service
MUMBAI, MAY 08, 2017: A conditional order was passed on 18.09.2014 (in about 82 appeals) invoking a specific Rule 986 in the Bombay High Court (Original Side) Rules.
That order reads -
"The Appellant and /or his Advocate to remove office objections on the Appeal and get the same numbered and regd. on or before 16/10/2014, failing the Appeal to stand rejected under O. S. Rule 986."
This order is sought to be set aside by the Revenue by filing a Notice of motion. Incidentally, there is a delay of 776 days in doing this.
The primary claim made in the affidavit filed by Revenue is that the office objections could not be removed because the panel of the advocates representing the Revenue was changed; that it took some time to engage new panel counsel and after getting in touch with the panel counsel(s), the precise nature of the office objections and consequences of the conditional order came to the notice of the Service Tax Department.
It is further submitted in the affidavit that from October, 2014, there was a restructuring of Pune-III Commissionerate and the earlier Pune III Commissionerate was trifurcated into Pune III, Pune IV and Pune Service Tax Commissionerate; that pursuant to the restructuring, the matters pertaining to service tax belonging to Pune III Commissionerate were transferred to the newly formed Pune Service Tax Commissionerate; correspondence pertaining to Service Tax Commissionerate was sometimes mis-sent to Pune III Commissionerate and their office was not in a position to obtain the communications received from the Legal Coordination Cell Superintendent, particularly the conditional order of the Registry of this court; that there was no record in the case files regarding the nature of the office objections and, therefore, no steps could be taken by his office to remove the office objections;that they were under a bonafide belief that the case was still alive in the High Court;that it is after the directions and advise of the new panel counsel that the present notice of motion was filed on 3rd December, 2016.
The High Court was un-impressed and expressed its displeasure thus -
7. …we are astonished by the understanding of this Service Tax Commissioner and particularly of the provisions of law. None should insist that he must be made aware of law for the law is presumed to be known immediately after the same is notified. Particularly the senior level officers, who are affirming the affidavits ought to know that there is nothing like separate communication from the Registry about the office objections. The office objections are set down on the original files. It is the duty of the advocate filing an appeal either for the Revenue or the advocate for the assessee to take note of the office objections and promptly comply with them…
8. We caution the advocates appearing for the Revenue that they are first the officers of the court. They ought not to dance to the tune of the senior level officials and particularly the Service Tax Commissionerate in Pune. If any advice and opinion tendered is being misconstrued and used against them, then, it is for them to decide whether to continue and render their service to the Revenue. Secondly, this Commissioner ought to know that there cannot be any justification for not visiting the Registry and seeking inspection of the files, particularly in matters involving a huge tax liability but rely only on some communication from the advocate. No litigant can say and as of right that because I have handed over the papers to advocate, it is not my duty to follow up the matter. We are using such harsh words for we have noticed that in matters after matters the Pune Service Tax Commissionerate seeks to justify its lapses particularly without disclosing when the trifurcation took place, which files were lost and who in the hierarchy could not communicate with them. There are no particulars, but vague statements placed on record. In the present case, there are 82 matters, which are disposed of by a common order by the Registry. In all of them, no compliance with the procedural rules was made. If tomorrow all the Commissionerates and Commissioners or high ranking officials place before this court such causes or reasons for condoning the erroneous delay, they should be reminded at once that they are not special litigants. The Government is not a special litigant nor the Tax Department or the Revenue."
Nonetheless, the High Court condoned the delay in the larger interest of justice.
The notice of motion was allowed.
In passing: Been there, done that…
See 2017-TIOL-84-HC-MUM-CX & 2017-TIOL-333-HC-MUM-ST.
(See 2017-TIOL-857-HC-MUM-ST)
