ADVOCATE ASSOCIATION BENGALURUversusANOOP KUMAR MENDIRATTA AND ANR

                          [2022] 3 S.C.R. 575                            575


           ADVOCATE ASSOCIATION BENGALURU                                A
                                  v.
           ANOOP KUMAR MENDIRATTA AND ANR
               (Contempt Petition (C) No 708 of 2021)
                                 In                                      B
                       WP (C) No 502 of 2021
                             MAY 17, 2022
        [DR. DHANANJAYA Y CHANDRACHUD AND
         PAMIDIGHANTAM SRI NARASIMHA, JJ.]                               C
       Contempt of court: Contempt jurisdiction – Exercise of –
Contempt proceedings relating to appointments to the Income Tax
Appellate tribunal – Search cum Selection Committee-SCSC chaired
by Supreme Court judge recommended names of 41 persons for
appointment as Judicial Members and Accountant Members of ITAT,
28 persons in the main list and an additional 13 persons in the wait     D
list – Appointments Committee of the Cabinet-ACC approved 22
candidates, 16 persons from the main list and 6 from the wait list,
and 19 persons remain to be appointed – Petitioners case that in
making its selection, the ACC placed reliance on certain reports
and feedback obtained subsequent to the recommendations of the           E
SCSC, none of which have been placed before the SCSC – Held:
Candidates who are recommended by the SCSC are those who had
been cleared by the IB after verifying their credentials, integrity,
character and other relevant aspects – As a general practice, all
inputs bearing on the candidature of each prospective applicant
under consideration, whether the inputs emanate from the IB or           F
from any other source, ought to be placed by the Union Government
on the record of the SCSC in advance, before the recommendations
are formulated – SCSC would then be in a position to determine as
to whether any modification of its original recommendation is
necessitated – This can happen only in exceptional situations –          G
Hence, all such inputs, as are available with the Government, must
be placed before the SCSC in advance – Thus, the feedback
tabulated in the file note before the competent authority to be placed
before the SCSC so as to enable it to consider whether any
modification in the terms of its recommendations is warranted –
                                                                         H
                                 575
576                 SUPREME COURT REPORTS                   [2022] 3 S.C.R.


A     Union Government to carry out the said exercise within the stipulated
      period and thereafter, would process the recommendations of the
      SCSC and would apprise the court – In view thereof, it is not
      expedient to pursue the contempt proceedings – Contempt Petition
      however, to be re-numbered as interlocutory application – Vacancies
      in the ITAT to be duly filled.
B
            INHERENT JURISDICTION : Contempt Petition (Civil) No.708
      of 2021.
               In
               Writ Petition (Civil) No.502 of 2021.
C            From the Order dated 14.07.2021 of this Court in Writ Petition
      (Civil) No.502 of 2021.
             K. K. Venugopal, AG, Tushar Mehta, SG, K. M. Nataraj, Balbir
      Singh, ASGs, Arvind P. Datar, Sr. Adv. (A.C.), R. Basant, Anil Kumar
      Sangal, Sr. Advs., Rahul Unnikrishnan, T. V. S. Raghavendra Sreyas,
D     Naveen Hegde, Mahesh Thakur, Ajay Kanojiya, Vipasha Singh, Akshay
      Sahay, Kanu Agrawal, Saurabh Mishra, Vanshaja Shukla, Ms. Priyanka
      Das, Ms. Chinmayee Chandra, Ankur Talwar, Rajat Nair, Siddhanth Kohli,
      Ms. Suhashini Sen, Ms. Shraddha Deshmukh, Zoheb Hossain, Arvind
      Kumar Sharma, Raj Bahadur Yadav, Kartik Seth, Ms. Shriya Gilhotra,
      Ms. Garima Saxena, Sahil Nagpal for M/s Chambers of Kartik Seth,
E
      Ms. Sakshi Kakkar, Sakti Singh, Anmol Srivastav, Ms. Urvashi Arya,
      Jasmeet Singh, Rupesh Kumar, Tarun Gupta, Siddharth Sangal, Ms.
      Nilanjani Tandon, Ms. Garima Bajaj, Vikas Jain, Advs. for the appearing
      parties.
               The Judgment of the Court was delivered by
F
               DR. DHANANJAYA Y CHANDRACHUD, J.
           1. The contempt proceedings relate to appointments to the Income
      Tax Appellate Tribunal1.
             2. On 6 July 2018, an advertisement was issued for 37 vacant
G     posts in the ITAT. Of them, 21 were for Judicial Members and 16 for
      Accountant Members. The selection process was set in motion. The
      Search cum Selection Committee2 was chaired by Hon’ble Mr Justice
      A M Khanwilkar, Judge, Supreme Court of India.
      1
           “ITAT”
      2
H         “SCSC”
      ADVOCATE ASSOCIATION BENGALURU v. ANOOP KUMAR                          577
    MENDIRATTAAND ANR [DR. DHANANJAYA Y CHANDRACHUD, J.]


       3. On 21 September 2019, the SCSC recommended the names of            A
41 persons for appointment as members of the ITAT. The reply which
has been filed by the Secretary to the Department of Legal Affairs
indicates that the SCSC had recommended 28 persons (16 as Judicial
Members and 12 as Accountant Members) in the main list and an
additional 13 persons in the wait list. The recommendations were received
                                                                             B
by the Department of Legal Affairs on 3 October 2019 and were
submitted on 16 October 2019 for consideration and approval of the
Appointments Committee of the Cabinet3. The ACC approved 13 persons
for appointment on 11 September 2021 and 9 persons on 1 October
2021. Thus, appointments of a total of 22 candidates were approved.
Offers of appointment were issued by the Department of Legal Affairs         C
on 11 September 2021 and 1 October 2021.
        4. Out of 28 recommendations in the main list and 13 in the wait
list, the ACC selected 16 persons from the main list and 6 from the wait
list. Since the SCSC had recommended the names of 41 persons for
appointment (28 in the main list and 13 in the wait list) and 22 persons     D
have been selected, 19 persons remain to be appointed.
      5. On 16 December 2021, this Court, while issuing notice in these
proceedings, observed thus:
        “We are informed by the learned Attorney General that 37
        vacancies were advertised in the Income Tax Appellate Tribunal.      E
        The Search-cum-Selection Committee of the Supreme Court
        recommended 28 names, out of which 16 persons are being
        considered for appointment as Members – Judicial and 6 persons
        as Members-Technical. The learned Attorney General assures
        us that the appointments would be made by the end of this month.     F
               So far as the remaining recommended names are concerned,
        the learned Attorney General submits that the Government has
        not yet cleared the names due to certain inputs received from IB
        Report(s) as also Medical Report(s) which are still being
        examined.                                                            G
               In view of the same, we direct the learned Attorney General
        to produce the concerned file on the next date of hearing and
        place the same before the Bench for its perusal.

3
    “ACC”                                                                    H
578                SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A                 The Respondents are at liberty to file a counter affidavit in
            the meantime, if necessary.”
            6. In pursuance of the above directions, Mr K K Venugopal,
      Attorney General for India has tendered copies of the file pertaining to
      the appointment of the members of the ITAT, pursuant to the
B     recommendations of the SCSC for perusal by the Court.
             7. We have heard Mr R Basant, senior counsel appearing on behalf
      of the petitioner and Mr K K Venugopal, Attorney General for India for
      the Respondents. Mr Arvind Datar, senior counsel has assisted the Court
      as amicus curiae.
C           8. Mr R Basant submitted that:
            (i)      Though 41 persons were recommended by the SCSC
                     (28+13), 22 persons were selected by the ACC leaving 19
                     persons yet to be appointed;

D           (ii)     19 new vacancies have since arisen as a consequence of
                     which 38 vacancies remain unfilled in the ITAT;
            (iii)    22 persons who have been selected by the ACC have been
                     selectively appointed both from the main list and the wait
                     list, as a consequence of which only 16 out of 28 in the
                     main list have been appointed and 6 out of 13 have been
E
                     appointed from the wait list; and
            (iv)     In making its selection, the ACC has placed reliance on
                     certain reports and feedback obtained subsequent to the
                     recommendations of the SCSC, none of which have been
                     placed before the SCSC which was chaired by a Judge of
F
                     the Supreme Court.
            9. Mr Arvind Datar, amicus curiae, urged the following
      submissions:
            (i)      Since the SCSC had recommended 28 persons in the main
G                    list and 13 in the wait list, no person in the wait list could be
                     or ought to have been appointed unless the main list was
                     exhausted;
            (ii)     The ranking which has been indicated in the
                     recommendations of the SCSC should not be deviated from
H                    and must be followed;
   ADVOCATE ASSOCIATION BENGALURU v. ANOOP KUMAR                             579
 MENDIRATTAAND ANR [DR. DHANANJAYA Y CHANDRACHUD, J.]


     (iii)   Section 184(7) of the Tribunal Reforms Ordinance 2021           A
             contained a provision requiring the SCSC to recommend
             two candidates for each vacancy and though this provision
             was struck down in the judgment of the three-Judge Bench
             of this Court dated 14 July 2021, the same provision has
             been re-enacted in Section 3(7) of the Tribunals Reforms
                                                                             B
             Act, 2021; and
     (iv)    Any inputs obtained subsequent to the recommendations of
             the SCSC from any other source must be placed before the
             SCSC in order to enable it to consider whether any
             modification in its recommendations is necessitated on the
             basis of tangible material which has come to the knowledge      C
             of the competent authority subsequent to the
             recommendations of the SCSC.
     10. On the other hand, Mr K K Venugopal, learned Attorney
General for India submitted that:
                                                                             D
     (i)     The SCSC has recommended 28 candidates in the main list
             and 13 candidates in the wait list. Appointment of candidates
             in the wait list is legitimate where appointments are not
             made from the main list or persons in the main list have not
             accepted appointment;
                                                                             E
     (ii)    Section 3(7) of the Tribunals Reforms Act 2021
             contemplates that two names have to be recommended
             against each vacancy and, hence, the names in the wait list
             have been considered by the competent authority, together
             with the list of names which were submitted in the main
             list;                                                           F
     (iii)   In some cases, it has come to the notice of the competent
             authority that there are penalty proceedings against the
             candidate under the provisions of the Income Tax Act, 1961.
     (iv)    No case for the exercise of the contempt jurisdiction has
                                                                             G
             been made out since:
             (a)   The Finance Secretary is not concerned with the
                   appointment of the Members of the ITAT under the
                   Allocation of Business Rules 1961; and
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580                  SUPREME COURT REPORTS                       [2022] 3 S.C.R.


A                      (b)   The then Secretary, Department of Legal Affairs has
                             since been appointed as a Judge of the High Court
                             on 25 February 2022.
             11. The Attorney General, however, has fairly submitted that where
      subsequent inputs have been drawn to the attention of the competent
B     authority after the submission of the recommendations by the SCSC, it
      is fair and proper that these comments, together with the original
      Intelligence Bureau4 report, are remitted back to the SCSC to enable it
      to apply its mind to the material which is placed before it. Along the
      same lines, it has been stated by the learned Attorney General that, in
      the future, it would be ensured that:
C
              (i)      All inputs which are available with the Government whether
                       from the IB or from any other source including the Central
                       Board of Direct Taxes5 should be placed before the SCSC
                       in advance, before it makes its recommendations, so that
                       these inputs are duly borne in mind in an appropriate manner
D                      before the recommendations are finalized; and
              (ii)     In the present case, the objections of the competent
                       authority to some of the recommendations made by the
                       SCSC should be placed for consideration by the SCSC.

E            12. In pursuance of the order dated 16 July 2021, the relevant file
      has been placed before the Court. It would not be appropriate for this
      Court to discuss or refer to individual names of candidates from the
      recommendations which have been made by the SCSC or from the file
      note. It would suffice, however, to note that the file contains a feedback
      sheet for candidates recommended by the SCSC for Members of the
F     ITAT; there being two separate sheets dated 8 September 2021 and 29
      September 2021. Against the name of each candidate recommended for
      appointment either as Judicial Member or, as the case may be, Accountant
      Member, there is a column which tabulates the “IB Report”; another
      column which reads as “Feedback” and a final column containing
G     “Remarks”. The real bone of contention would pertain to the column
      which is titled as “Feedback”. The file note does not indicate the underlying
      material on the basis of which the feedback is formulated or the process
      which is followed before arriving at the feedback. In many cases, we
      4
          “IB”
      5
          “CBDT”
H
    ADVOCATE ASSOCIATION BENGALURU v. ANOOP KUMAR                             581
  MENDIRATTAAND ANR [DR. DHANANJAYA Y CHANDRACHUD, J.]


find from the tabulation that the feedback is diametrically at variance       A
with the contents of the IB report. The IB report under the extant
procedure is placed before the SCSC before the process of shortlisting
takes place and candidates are called for interview. Hence, the candidates
who are recommended by the SCSC are those who had been cleared by
the IB after verifying their credentials, integrity, character and other
                                                                              B
relevant aspects. Evidently, many of the comments which are contained
in the feedback column are of a subjective nature without any disclosure
of underlying material. This would substantially detract from the fairness
of the process. If, in an exceptional case, subsequent to the formulation
and submission of recommendations of the SCSC, any tangible material
comes to the knowledge of the competent authority, it is only proper and      C
appropriate, as the Attorney General submits, that such material should
be placed before the SCSC. We are in agreement with the submission
of the Attorney General that as a general practice, all inputs bearing on
the candidature of each prospective applicant under consideration, whether
the inputs emanate from the IB or from any other source, ought to be
                                                                              D
placed by the Union Government on the record of the SCSC in advance,
before the recommendations are formulated. For instance, in the case
of a few candidates in the process which forms the subject matter of the
dispute, the objection was on the ground that penalty proceedings have
been initiated by the CBDT. In this context, Mr Arvind Datar submitted
that the provisions of Section 270A of the Income Tax Act 1961 result in      E
the automatic initiation of penalty proceedings where the income tax, as
assessed, is higher than the income as reported by the assessee in the
income tax return resulting in the invocation of proceedings for the
imposition of a penalty. Having regard to these and other aspects, it
would, in our view, be appropriate if such material which has come to
                                                                              F
the knowledge of the competent authority must be drawn to the attention
of the SCSC which would then be in a position to determine as to whether
any modification of its original recommendation is necessitated by such
facts as have come on the record subsequent to its recommendations.
This can happen only in exceptional situations. In the generality of cases,
all material must be placed in advance before the SCSC. It must be            G
emphasized that the SCSC, which is chaired by a Judge of the Supreme
Court also consists of two Secretaries of the Union Government. A
comprehensive exercise is conducted by the Committee, inter alia,
involving calling for inputs from the IB, verifying the record of each
candidate and conducting personal interaction. Hence, all such inputs,
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582            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A     as are available with the Government, must be placed before the SCSC
      in advance. In an exceptional situation, where certain material comes to
      light after the submission of the recommendations, that must also be
      drawn to the attention of the SCSC so as to enable it to consider whether
      any modification of its recommendations is necessary.
B           13. In view of the above discussion, we are of the considered
      view that the feedback which has been tabulated in the file note before
      the competent authority must be placed before the SCSC so as to enable
      it to consider whether any modification in the terms of its
      recommendations is warranted. If the feedback is based on any tangible
      underlying material, such material should be placed before the SCSC.
C     The Union Government shall carry out this exercise and place all the
      relevant material before the SCSC within a period of one week from the
      date of this judgment. We would request that a meeting of the SCSC
      may be convened thereafter so that a final decision can be arrived at on
      whether any modification in the terms of the recommendations is
D     warranted. The recommendations of the SCSC shall be processed by
      the Union Government and the court shall be apprised of the decision
      which has been taken.
             14. Before concluding, it would be necessary to refer to one other
      aspect. In the affidavit which has been filed by the Secretary to the
E     Department of Legal Affairs, the following tabulation of the pendency
      position before the ITAT has been adverted to:




F




G
            15. The Attorney General, while placing the above tabulation during
      the course of the submission, has adverted to the fact that the pendency
      before the ITAT which stood at 92,386 at the end of 2016-2017 has
      witnessed a reduction to 50,426 at the end of 2021-2022.
H
    ADVOCATE ASSOCIATION BENGALURU v. ANOOP KUMAR                                 583
  MENDIRATTAAND ANR [DR. DHANANJAYA Y CHANDRACHUD, J.]


        16. Responding to the above tabulation, both Mr R Basant and              A
Mr Arvind Datar have submitted that the above reduction is largely due
to the following reasons:
        (i)     Disposal of appeals attributable to the Vivad Se Vishwas
                Scheme;
        (ii)    Withdrawal of appeals as a result of the enhancement of           B
                the tax threshold; and
        (iii)   Nearly 5.5 lakh appeals are pending before the CIT
                (Appeals) and once these appeals are disposed of, the
                transient reduction in the pendency figures of the ITAT will
                undergo a substantial change.                                     C

       17. At this stage, since no decision has been taken by the Union
Government on the appropriate strength for the ITAT, it is not necessary
for the Court to render any finding, on this aspect.
       18. Having devoted our anxious consideration to the issue as to            D
whether the exercise of contempt jurisdiction is warranted, we are of
the view that it would not be expedient in the interests of justice to
pursue proceedings under the contempt jurisdiction. The Contempt Petition
shall, however, be re-numbered as an interlocutory application. The
vacancies in the ITAT shall be duly filled up so as to enable the ITAT to
function effectively.                                                             E
       19. These proceedings be listed before the Court on 12 July 2022
so that the Court can be apprised of the final decision which has been
taken by the competent authority after the submission of the
recommendations of the SCSC and the appointment orders which have
been issued.                                                                      F
       20. The submissions of the learned amicus curiae which remain
to be debated upon shall be open for consideration at the final hearing.

Nidhi Jain                                                   Directions issued.
                                                                                  G




                                                                                  H