TaxTMI 
TaxTMI 
2019 (5) TMI 194
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....r of Income Tax, Investigation, Unit-3 and (ii) the Deputy Director of Income Tax, Investigation, Unit 3(2) in their personal capacity. 2. We have heard Mr.T.Ravikumar, learned Senior Standing Counsel for the appellants. 3. Before we go into the contentions made by the learned Senior Standing Counsel for the appellants, we pose a question to ourselves as to whether we are required to issue notice to the respondent herein - writ petitioner/assessee. To answer this question, we may straight away refer to a few decisions. One more question to be answered is as to whether the appeals filed by the Department would be sufficient to consider as to whether the remarks made by the learned Single Judge as against the Officer of the Department and its Senior Standing Counsel can be maintained. 4. In the decision in the case of State of Maharashtra Vs. Public Concern for Governance Trust [reported in 2007 (3) SCC 587], the State filed an appeal to expunge the remarks made against the Chief Minister of the State. The Hon'ble Supreme Court considered the questions as to whether the appeal filed by the State (State of Maharashtra) was maintainable and as to whether the State was comp....
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....ell as the directions issued against the petitioner therein. It was further pointed out that since the assessee in the said case was not concerned with the grievance, which had been made by the petitioner before the Hon'ble Supreme Court, it was not necessary to issue notice to him in the special leave petition. 8. The aforementioned decisions are clear answer to the query framed by us and consequently, we hold that the respondent herein - writ petitioner/assessee is not concerned about the observations/ adverse remarks made against the officer of the Department and their Senior Standing Counsel and consequently, we hold that no notice is required to be issued to the respondent herein - writ petitioner/assessee. 9. Having steered clear of this legal position, we will now examine one more crucial aspect, which has been brought to the notice of this Court even earlier when we dispensed with the production of the certified copy of the impugned order by a common order dated 26.3.2019 in CMP.Nos.7664, 7666, 7668, 7669, 7672, 7676 and 7680 of 2019 wherein we recorded reasons as to why the prayer needed to be granted, as the common order dated 31.1.2019 passed by the learned Sin....
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....by the appellant - Department. 12. The impugned common order was passed by the learned Single Judge after a memo dated 29.1.2019 was filed by the appellant - Department in the Registry on 29.1.2019. We have perused the said memo and we find that the prayer sought for in the said memo is for granting 15 days' time for final hearing of the said writ petitions, which were 7 in number. The sum and substance of what had been stated in the said memo was that the appellant - Department wanted the said writ petitions to be adjourned by a period of 15 days so as to enable their Special Counsel, who had been nominated to appear in the matter before the Court and make his submissions. It had been further stated that on instructions given by the Special Counsel nominated by the Government, the said memo had been filed. The said memo had been signed by the Principal Director of Income Tax (Investigation), Chennai and filed before the Registry with the docket mentioning the names of the Standing Counsel appearing for the appellant - Department. 13. The respondent herein - writ petitioner/assessee filed a counter to the said memo and we are surprised as to why such a counter was requ....
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....n'ble Supreme Court held that the adverse remarks against the appellant therein were neither justified nor called for. It was further pointed out that higher the forum and greater the powers, the greater the need for restraint and the more mellowed reproach should be. 17. In the decision in the case of A.M.Mathur Vs. Pramod Kumar Gupta [reported in 1990 (2) SCC 533], the former Advocate General of the State of Madhya Pradesh filed an appeal to expunge certain derogatory remarks made against him by the High Court. The Hon'ble Supreme Court pointed out that judicial restraint might better be called judicial respect i.e. respect by the Judiciary; respect to those, who come before the court as well as to other coordinate branches of the State, the Executive and the Legislature, that there must be mutual respect and that when these qualities fail or when litigants and public believe that the Judge had failed in these qualities, it will be neither good for the Judge nor for the judicial process. Ultimately, the remarks made against the former Advocate General were expunged. 18. In the decision in the case of State of Bihar Vs. P.P.Sharma [reported in 1992 Supp. (1) SCC 222]....
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....e impugned directions and therefore disposed of the matter without bringing the respondent therein before the Court. 21. As pointed out by us earlier, the cases on hand are also on the same pedestal, as the respondent herein - writ petitioner/ assessee can say nothing about the remarks made by the learned Single Judge against the officer of the appellant Department and their Senior Standing Counsel. 22. Reverting back to the decisions, the Hon'ble Supreme Court in the case of State of Karnataka Vs. Registrar General, High Court of Karnataka, referred to the decision in the case of Mohammed Naim and other decisions and set aside the directions/remarks made by the Division Bench of the High Court of Karnataka. 23. In the decision in the case of Manish Dixit Vs. State of Rajasthan [reported in 2001 (1) SCC 596], the Hon'ble Supreme Court pointed out that it had repeatedly cautioned that before any castigating remarks are made by the court against any person, particularly when such remarks could ensue serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in respect of the proposed remark....
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.... 54] wherein it was held that the overall test is that criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve. 29. In the decision in the case of Amar Pal Singh Vs. State of Utter Pradesh [reported in 2012 (6) SCC 491], the Court made observations as to how the Superior Court has to employ the language in a judgment and on facts, having found that the said procedure had not been followed, the Hon'ble Supreme Court expunged the remarks made therein. 30. In the decision in the case of Om Prakash Chautala Vs. Kanwar Bhan [reported in 2014 (5) SCC 417], the Hon'ble Supreme Court pointed out that reputation is fundamentally a glorious amalgam and unification of virtues, which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It was further observed that it is a nobility in itself, for which, a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea, that the said virtue has both horizontal and vertical qualities and that when reputation is hurt, a man is half-dead. 31. In the decision in....
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....ves the counsel from unwanted and unnecessary proceedings. 37. The legal principle that can be culled out from the above decisions is that unwarranted comments and remarks were not called for and what was important to bear in mind was as to whether the three cardinal tests laid down by the Hon'ble Supreme Court in the decision in the case of Mohammed Naim had been complied with. One of those three tests is as to whether the party, whose conduct is in question is before the court or has an opportunity of explaining or defending himself. In the instant case, neither the officer of the Department nor its Senior Standing Counsel had an opportunity of explaining or defending themselves. Therefore, the first test laid down in the decision in the case of Mohammed Naim has not been fulfilled in the instant case. 38. The second test is as to whether there is evidence on record bearing on that conduct justifying the remarks. We have carefully gone through the memo filed by the Department and the observations made by the learned Single Judge. The memo sought for an innocuous prayer to adjourn the matter by 15 days. It referred to engagement of a Special Counsel from New Delhi, who h....