Thread by @barandbench

Supreme Court hears the tribunal vacancies case

AG KK Venugopal: We have filed a counter in the contempt of court case. We have said that the officer had no role to play in appointment of members in Income tax appellate tribunal

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AG: Search and selection committee had recommended names for ITAT members. The then secretary legal affairs who is the alleged contemnor had received the recommendations and there was no delay on his part. ACC approved 22 members.

SC: The SSC had recommended 28 members. This was done by Justice Khanwilkar committee. But you took 22 and 6 from main list. why did not you take from main list

AG: we are allowed to do so

AG: We have said enquiries should be restricted to the shortlisted list and should not be done after the recommendations of selected candidates but should be done as soon as shortlist is done.

SC: Now IB clearance is there even before shortlisiting

SC: What we find from the red flags given to us by you Attorney General, now, after the IB looks at all the candidates which are being shortlisted by a SC judge headed committee, now names not cleared by IB, then we don't cross the barrier at all unless it is frivolous.

SC: after ib report and recommendations, now, anything once IB has cleared the candidate, it is final as far as integrity of candidate is concerned. you have said you rejected a candidate due to multi source information. But who are these sources. IB is a govt authority

AG: If the name of source is revealed it will embarrass the members

SC: Who is carrying out these enquiries

AG: It is the @PMOIndia

SC: But look at the arbitrariness

SC: We are not infallible. But if something is not brought into attention of IB then IB has to be informed and then SC judge heading it and then re-verification has to be done by IB. We will not stand in anyones way.

SC: I was in Allahabad HC for 3 years. The nature of feedback will depend on who is asked. I am part of the SC collegium now and I am telling you it depends on who you ask. Here in this case, PMO has to inform IB, IB has to inform us.

Justice PS Narasimha: if your source is bar members etc then it is the same way IB works. you are only revisiting the process.

AG: But here some candidates we had rejected had IT filings pending as IB did not go to CBDT.

SC: But here the person preferred an appeal

SC: We cannot say much otherwise the name of the candidate will be revealed. We also have to look at quantum of penalty

AG: There are 9 vacancies in ITAT and committee is considering that.

SC: These people about whom pmo has objections, their IB reports have to be re-verified. For eg: IB said he has no professional issues but says discreet info says he does not read case papers well and that he was admonished.

DYC J: we all have appeared for municipal corporations etc and we were admonished also and not because of us but because of our clients. (laughs)

IB Must make the enquiry. I chair a selection panel and once IB tells us there is a problem, we are extremely careful and excludes them. Thereafter anything that happens you must place it before IB and intimate the SC judge also otherwise the judge feels why they are doing it: SC

SC: We need to institutionalise this. what we propose to do is incase after SSC has made a recommendation and some further material has come to light when it is before ACC it has to be before the chairman of SSC (Search and selection committee report headed by SC judge)

AG: I have a suggestion. The enquiry by the govt can be placed along with the IB like CBDT etc. so that the stand by SSC becomes final

SC: But in this case then we have to send the names back to the committee

AG: The pendency is continuously going down. Now is it necessary to continue the same thing. But yes let this be referred to the IB and placed before the high powered committee headed by CJI. That committee only looks at ITAT President appointment

Justice Narasimha: going back to the committee instead of IB so that PMO report can be checked would be better. this is in backdrop of IB report.

Sr Adv R Basant: on 6.7.2018 ad was for 37 members. SCSC headed by Justice Khanwilkar conducted interviews they recommended 41 names after a laborious process. this was after complying with all procedure including IB etc.

Basant: then 19 vacancies also arose and now there is a total vacancy of 38 members.

Basant: it has to be considered if at all such additional inputs can be accepted now. we have to read between the lines to show that this is an attempt to not grant appointment to these 19 members. it has to be given now

Basant: the PMO recommending is an unworthy attempt to delay the appointment. they say work has reduced. there were 92,000 cases pending and now there is over 50,000 cases pending. this is happening because of vivad to vishwas scheme where appeals have been withdrawin

Basant: many ITATs are not functioning since there are no members.

AG: Such assertions are totally wrong.

Sr Adv Datar: the list finalised by the supreme court judge cannot be revisited like this. Section 270A under IT Act is dangerous provision since any difference is marked as penalty and these are mostly set aside in appeal due to technical errors.

Datar: difference between assessment and return is taken up and penalty is imposed. it cannot be yardstick to deny appointment.

DYC J: you said ranking should not be deviated from and for HC it assumes serious proportions and when members of bar is elevated there are issues of seniority.

Datar: how can number 2 be ignored and people from waitlist be selected:?

AG: Before issuing contempt, notice must be issued why contempt should not be issued. Here cabinet secretary was arrayed which sent jitters down in govt. Now revenue secretary and finance secretary were parties. This is unfair to keep sword hanging on their head.

AG: Here it was only the law secretary. the name of cabinet secretary was just thrown in to add some weight and put government on the backfoot

AG: To say that we govt is immoral and doing something wholly unjustified is clearly unfair !

DYC J: There are some matters in which we can issue even a mandamus to the AG ! We have Article 142 in our arsenal. (laughs)

Justice Narasimha: Sub section 7 talks about a panel. process of selection speaks of list being prepared on the basis of merit, it is not a question of power but merit. But if you look at it from lens of power then it is a different thing.

SC ORDER: subject matter of the contempt petition pertains to appointments to the ITAT. On 6.7.2018 ad was issued for 37 vacant posts in ITAT. 21 of the, being for judicial members and 16 for accounts members.

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SC: Selection process was put in motion and SCSC was headed by Justice AM Khanwilkar, judge Supreme Court of India. SCSC submitted its recommendations on Sept 2019 and 41 names were recommended for appointment as members of ITAT

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SC: Reply of Secretary of Legal affairs say 28 persons were recommended by SCSC in main list and 13 in waitlist. recommendations were received in dept of legal affairs in OCt 2019 and submitted for consideration of cabinet

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SC: The ACC approved 13 names for appointment in sept 2021 and 9 persons in October 2021 thus making a total of 22 candidates. the offer of appointment was issued by Dept of legal affairs thereby.

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SC: ACC selected 16 persons from main list and 6 from waitlist. Since the SCSC had recommended 41 names for appointment (28 in main and 13 in WL) and 22 persons have been selected, 19 persons yet await appoitnment

#Tribunal @PMOIndia #contempt #SupremeCourt

The order now records submissions of each of the counsels who argued before the court.

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SC: During course of hearings it has transpired that reliance has been placed on reports which took place subsequent to decision of SCSC. None of those reports were before the committee headed by a judge of this court

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SC: SC: In pursuance of order dated July 2021 relevant files have been placed before this court. It would not be appropriate for this court to discuss individual names of candidates recommended by SCSC or file notes.

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SC: The note contains sheets about the members. Against the name of each candidate recommended for appointment as judicial or accountant member there is a column which has IB report and another column which reads a feedback and final column of remarks

SC: The bone of contention is about the column titled feedback. There is no info as to how feedback is formulated or process followed. In many cases we find feedback is diametrically different than IB report.

SC: IB report is placed before SCSC before the selection takes and candidates recommended by SCSC is the one who are cleared by IB after detailed analysis of their credentials and integrity.

SC: Many comments in feedback column is of subjective nature, this would substantially detract from the tenets of the process. If any tangible materials comes to the knowledge of competent authority then such material is placed before SCSC as suggested by AG

SC: We agree that all inputs regarding a candidate by the Union of India should be placed before the SCSC. Like in one candidates case it was noted penalty proceedings were noted by CBDT and Mr Datar cited that 270A leads to automatic initiation of IT Proceedings

SC: Having regard to this, it would be in our view be appropriate if such material which comes to knowledge of competent authority be placed before SCSC which would be in position to see if modification is needed to its orders in light of subsequent developments.

SC: SCSC comprises of a judge of this court and even two secretaries of the government of India. All inputs available with govt must be placed with SCSC in advance. if some facts come to light after recommendation in exceptional circumstances that too must be placed before SCSC

SC: The Union Government shall practice the exercise of placing the material before the SCSC in the tabulated form within a period of 1 week. We would request that a meeting of SCSC may be conducted after this. List the matter after vacations.

SC: AG while placing the above tabulation has adverted to the fact that the pendency which was at 92,000 has witnessed a reduction to 54,000. Sr Adv Basant and Amicus Sr Adv Datar has submitted that such reduction is due to vivad to vishwas scheme, withdrawal of appeals

SC: it is not unnecessary for this court to render any finding on the strength of ITAT since that question is not before us. In the interest of justice there is no need to pursue the contempt proceedings. It would not be expedient to carry these proceedings.

SC: The contempt plea will be now renumbered as an Intervention application so that orders can be passed.

SC: have you appointed them against whom there was no objections?

AG: We appointed the 22

SC: No, we mean all others. Those against whom there are no objections, please consider them.

The bench will continue hearing this case at 2 pm on the aspect whether members against whom no objections are there can be appointed
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Hearing resumes

AG: now I have the minutes of meeting also. waitlist purpose has been to only make up if someone from main list did not join

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AG: 6 were appointed from waitlist and not from mainlist. so 13 in wait list became 7. out of the 7, then 3 were available.

SC: out of 12 from the main, how many are where there is no objection from competent authority.

SC: okay so you are sending back names to SCSC who has not been cleared.
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Hearing ends #Supremecourt #tribunals