TaxTMI 
TaxTMI 
2014 (8) TMI 1243
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.... Balan, the reporting officer of the respondent from June to October, 2005, stating that the respondent in his capacity as CIT (Appeals), had allowed certain appeals without properly appreciating the facts or going through the records. Shri Balan had noted that this "gives birth to strong suspicion with regard to his integrity, however there is no specific evidence in this regard". Shri Balan retired in October 2005 and the ACR of the respondent was written in November 2005. It was asserted that the same was not reviewed. Further, in the latter part of the said year (November 2005 to March 2006) the reporting officer, as well as the reviewing officer, did not record any adverse comment in the respondent's ACR. 4. By letter dated 06.05.2010, a copy of the said Secret Note was forwarded for examination to Director of Income Tax (Vigilance), who in the reports dated 03.01.2012 and 18.01.2012 stated that out of nineteen appellate orders passed by the respondent and inspected by him, irregularities were noticed in six appellate orders. 5. By a letter dated 02.02.2012, the respondent was asked to provide explanation in respect of the orders passed in six appeals in which irregulari....
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.... while functioning as Commissioner of Income Tax (Appeals)-II, Kochi committed irregularity in the appeal order passed by him on 01.09.2005 in the case of Shri Jose Cyriac (Block Period- 01.04.1989 to 23.09.1998) by allowing the assessee's appeal in disregard of the directions given by the Income Tax Appellate Tribunal (ITAT) in its order dtd. 30.07.2003. By his aforesaid act, Shri S. Rajguru failed to maintain devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964." 7. The respondent submitted his written statement of defense dated 07.05.2012, requesting for a personal hearing and for the charges levelled to be dropped. Thereafter, on 19.06.2012, the respondent sent another letter requesting for release of his retirement benefits. Since, the said requests of the respondent were not accepted, he filed an application with the Central Administrative Tribunal (in short 'the Tribunal'). The Tribunal considered the contention of the parties and framed the following questions for its consideration:- "14. The controversies for our consideration and determination are: (i) Whether the applicant has been charged....
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....consult an independent agency like CVC to seek independent advice. It is only after the independent agency agreed with the disciplinary authority that charges could be framed against the delinquent official. The Tribunal observed that the procedure prescribed was to ensure proper application of mind by the disciplinary authority. The inputs that come between the first and second stage of the decision making process would be a guide to the disciplinary authority to take an informed decision in the matter. Since in this case this procedure had been truncated, the Tribunal found, that there was a procedural infraction, which in the given circumstances, had worked to the detriment of the respondent. It was further observed by the Tribunal that the charge memo had originated from a secret note given by the reporting officer, raising doubts as to the applicant's integrity. In this respect also the prescribed procedure was not adopted. A secret note is required to be properly inquired into, after which the Government servant is to be given an opportunity to defend himself and only thereafter, a proper decision is to be taken by the competent authority on such secret note and whether the s....
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....lity. 15. We have heard the learned counsel for the parties. 16. The short question that arises for consideration is whether in the facts of the present case, the Tribunal had erred in holding that the Articles of Charge were not sustainable since they were based on quasi-judicial orders passed by the respondent in his capacity as CIT (Appeals). 17. The Tribunal, after examining the facts and allegations, came to the conclusion that as there were no allegations that the respondent had acted malafide or for extraneous considerations, the allegations levelled only on the basis of the merits of the decisions rendered by the respondent in his capacity as CIT (Appeals), could not be sustained. 18. In the facts and circumstances of the present case, the question whether the decision rendered by the Supreme Court in Nagarkar (supra) was at variance with the law stated by the Supreme Court in K.K. Dhawan (supra) is not relevant because even if the tests as laid down by the Supreme Court in K.K. Dhawan (supra) are applied, the facts of the present case clearly indicate that disciplinary proceedings against the respondent are not maintainable. In the case of K.K. Dhawan (supra), ....
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....ed but the conduct of the employee in discharge of his duty as an officer. 20. In the present case, a plain reading of the Articles of Charge as well as the statement of imputations clearly indicate that the sole basis for making the charges is the correctness of the decisions rendered by the respondent while he was acting as CIT (Appeals). 21. The first Article of Charge relates to the decision rendered by the respondent in the case of M/s Bhagirath Engineering Ltd. In that case, the Assessing Officer had framed an assessment order whereby certain unaccounted payments had been added to the income of the assessee. A sum of `14,78,500/- which was seized from one Anoop Kumar Shah was also added as unexplained income. Sh. Anoop Kumar Shah stated that he had received the income from the vice president of the assessee company and on the basis of this statement, the said income was brought to tax. The respondent held that the additions made by the Assessing Officer on the basis of notings and seized papers was without confronting the directors and managers and accountant of the assessee company. Similarly, the cash seized, which was held to be unaccounted money of the company, was ....
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....al authority which is to be tested but the manner in which he had acted. In the case on hand, there is no allegation that there were any attendant features that would indicate that the respondent had acted on extraneous considerations, recklessly or in a manner so as to favour the assessee. 23. The third Article of Charge is based on a decision rendered by the respondent in respect of an assessee where certain income had been brought to tax. The assessee's case was that the additions made by the AO had already been considered in the assessment of the assessee's wife. The respondent accepted the said contention and deleted the additions in income made by the AO. Some of these deletions made by the respondent were reversed in appeal by the Income Tax Appellate Tribunal. It has been alleged that the respondent had deleted the additions made, without proper verification of the facts and the examination of the records. In essence, the allegation is that the respondent had committed an error in fact, by accepting the statement canvassed by the assessee, that the income that was being assessed in his hands had already been assessed in the hands of his wife. It is important to note that....
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....espondent is only on the basis of a decision which, according to the Revenue, was erroneous. 25. It can be seen from the above that the gravamen of the charges levelled against the respondent are not based on his conduct. Although it has been alleged that certain decisions rendered indicate a lack of devotion to duty, but a bare perusal of the statement of imputation and the Articles of Charge indicate that the gravamen of the charges is only that the respondent had rendered decisions which, according to the Revenue, were erroneous. This is certainly not the basis on which the proceedings for misconduct can be commenced against a officer who is charged with a quasi-judicial function. In K.K. Dhawan's case (supra) there was a specific allegation that the Officer had completed the assessment "apparently with a view to confer to undue favour upon the assessee's concern". The test laid down by the Supreme Court in that case must be read in the context of the facts placed before the Court. Although, the Court had held that where an officer had acted in a manner which would reflect upon his reputation for integrity or good faith or devotion to duty, a disciplinary action could be init....