TaxTMI 
TaxTMI 
2022 (5) TMI 1015
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....961 should not be made against the appellant/assessee. The assessee had submitted their reply dated 26th March, 2022 in which the first contention raised by the assessee was that the proceedings are liable to be stayed since the assessee has been admitted for Corporate Insolvency Resolution Process (CIRP) under the Insolvency and Bankruptcy Code, 2016 (IBC) and presently the assessee is under moratorium by orders of the National Company Law Tribunal (NCLT). In this regard, the assessee referred to Section 14 of the Code and also extracted the relevant portion of the order passed by the NCLT. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in Alchemist Asset Reconstruction Company vs. Hotel Gaudavan (P) Ltd. & Ors. reported in (2017) 88 taxmann.com 202 (SC) and the decision in the case of Mr. Rajendra K. Bhutta vs. Maharashtra Housing and Area Development Authority & Anr. (Civil Appeal No.12248 of 2018 dated 19.02.2020) and the other decisions of the Income Tax Appellate Tribunal, Delhi Bench and also the Securities Appellate Tribunal. Further, the assessee contended that in terms of Section 238 of the Code, the provisions of the Code ....
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....g the said order, the assessee filed a supplementary affidavit before the writ Court bringing on record before the learned writ Court about the assessment order passed during the pendency of the writ petition. The learned Single Bench had dismissed the writ petition by the impugned order dated 13th April, 2022. 5. On going through the impugned order we find that the issue as to whether the proceedings had to be kept in abeyance by the assessing officer in the light of the insolvency proceedings which were pending and the effect of Section 14 of the Code have not been dealt with though that was the core issue which was canvassed in the writ petition. The learned writ Court was of the opinion that the case of the assessee cannot be a case of violation of principles of the natural justice as the assessee had participated in the assessment proceedings and they wanted to challenge the assessment order before the writ Court. In our considered view there is a slight mistake on facts because the assessee had impugned the assessment order dated 30th March, 2022 by way of a supplementary affidavit since this assessment order was passed during the pendency of the writ petition. In the writ p....
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....olvency Code is that the moment an insolvency petition is admitted, the moratorium that comes into effect under Section 14(1)(a) expressly interdicts institution or continuation of pending suits or proceedings against corporate debtors. This legal principle should have been borne in mind by the assessing officer before he proceeded to pass the assessment order. Therefore, we are of the clear view that the assessment order dated 30th March, 2022 has to be set aside and the matter has to be restored to the file of the assessing officer and the matter shall be kept in abeyance till the completion of the insolvency resolution proceedings. 8. In the penultimate portion of the order, the learned writ Court while dismissing the writ petition has imposed cost of Rs.10,000/- on Mr. Somak Basu, learned Advocate. The learned writ Court was of the opinion that the costs need to be imposed because of his rude behaviour in the Court and addressing the Chair in a disrespectful manner. In the appeal, several grounds have been raised on this very particular issue. Mr. Basu, learned Advocate has appeared before us and submitted that he had not uttered any disrespectful expression to the Court and h....
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....parent that the learned Judge did not, before recording the adverse comments, give any opportunity to the appellant to put forth his explanation. The remarks so recorded have cast aspersion on the professional integrity of the appellant. Such condemnation of the counsel without giving him an opportunity of being heard would be a negation of the principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations is also found to be missing in the offending comments. 17. The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the Court judgments, it will be a cross that the appellant will have to bear, all his life. To allow to suffer thus, would in our view be prejudicial and unjust." 9. As pointed out by the Hon'ble Supreme Court making strong observations against the counsel appearing for a party without opportunity of being heard, would negate the principles of audi alteram partem. Further, the Hon'ble Supreme Court had pointed out that there should be requisite degree of restraint and....
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....expunged or not. In this regard the Court noted the following decisions of the Hon'ble Supreme Court. "15. In the case of State of U.P. v. Mohammed Naim [reported in AIR 1964 SC 703], the Hon'ble Supreme Court pointed out that it had been judicially recognized that in the matter of making disparaging remarks against persons or authorities, whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider:- (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. 16. It was further pointed out that it had also been recognized that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve. 17. In the decision in the case of Niranjan Patnaik v. Sashibhushan Kar [reported in (1986) 2 SCC 569], after referring to the decision in the case of Mohammed Naim, the Hon'ble Supreme C....
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....C 466 : AIR 1975 SC 1741] and (iii) Niranjan Patnaik v. Sashibhusan Kar [reported in (1986) 2 SCC 569 : AIR 1986 SC 819]. 21. It was pointed out that in spite of the above catena of decisions, the learned Judge did not, before making the remarks, give any opportunity to the appellants therein, who were, admittedly, not parties to the revision petition to defend themselves. It was further pointed out that it cannot be gainsaid that the nature of remarks the learned Judge made, cast a serious aspersion on the appellants affecting their character or reputation and may ultimately affect their career also. The Hon'ble Supreme Court ultimately held that the Court should have used a temperate language and moderate expressions while criticising the appellants therein and shown judicious restraint, allowed the appeal and quashed the disparaging remarks made against the appellants therein. 22. In the decision in the case of State of Karnataka v. Registrar General, High Court of Karnataka [reported in (2000) 7 SCC 333], the challenge was to an order passed by the Division Bench of the High Court of Karnataka on the ground that it went outside the scope of the lis before it and made ....
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...., held that the observations did not, prima facie, appear to have any relevance to the subject matter of dispute before the High Court and uncalled for observations were directed to be set aside. It was also held that they must be treated as having never existed or been part of the High Court judgment. 28. In the decision in the case of Samya Sett v. Shambu Sarkar [reported in (2005) 6 SCC 767], the Hon'ble Supreme Court, in the opening paragraph of the judgment, pointed out that the appeal reminded them of a golden advice given by the Supreme Court before more than four decades in the decision in the case of Mohammed Naim and proceeded to consider the question as to whether the remarks could be sustained. The Hon'ble Supreme Court ultimately held that the remarks were uncalled for and unwarranted and were accordingly quashed. 29. In the decision in the case of Public Concern for Governance Trust, where the appeal was filed by the State to expunge the remarks against the then Chief Minister, the appeal was held to be maintainable and the serious aspersions cast on the then Chief Minister affecting his reputation having been made without giving an opportunity were quashe....
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....s held to be maintainable and the Court, after referring to the celebrated decision in the case of Mohammed Naim and other decisions, allowed the appeal and expunged the remarks. 36. In the decision in the case of Shyam Narayan Tripathi v. State of M.P. [reported in 2001 (2) MPLJ 234], a petition was filed under Section 482 of the Criminal Procedure Code to expunge the remarks made against the advocate, who had filed a memo before the Court seeking for an adjournment on the ground of illness. This memo was rejected by the Court and certain remarks were made against the advocate. The remarks, having been made without notice or opportunity to the concerned advocate, were held to be bad, apart from holding that the remarks were unjustified and uncalled for and therefore, liable to be expunged. 37. In the decision a learned Single Judge of this Court in the case of T. Vetriselvan v. Tamil Nadu Mercantile Bank Limited [reported in 2002 (1) CTC 513], one of the questions, which fell for consideration is as to the what was the effect of an opinion given by a counsel to a party. It was held that the opinion given by a counsel was mainly based upon the records produced by his client and....