tag:blogger.com,1999:blog-3202774368551476669.post8162858337477209321..comments2023-09-15T16:21:31.980+05:30Comments on INDIAN CORPORATE LAW: Further Comments on the NCLT judgmentUmakanth Varottilhttp://www.blogger.com/profile/12438677982004444359noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-3202774368551476669.post-9199583295467904752010-06-06T10:35:14.126+05:302010-06-06T10:35:14.126+05:30No way that just because you write a compulsory ta...No way that just because you write a compulsory tax paper for CA exam you know tax law better..! Tax law is in concept dependent on legal understanding. I am not saying that accountant members do not have that understanding; but that is NOT because of writing tax papers! The problem is not so much with CAs in any case, it is with 'technical' members having experience in 'law, accounts, trade, commerce, industry...' I have no issues with members having experience in law and accountancy. But this rubbish formulation in the NTT of members experienced in trade and commerce is basically a post-retirement posting for babudom. Good that the Court stopped that!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-23793758132408562572010-05-24T13:53:33.121+05:302010-05-24T13:53:33.121+05:30Let us not drag ITAT accountant members into this ...Let us not drag ITAT accountant members into this debate. In a typical combination of legal and accountant members on a division bench, accounting member is more likely to know income tax law inside out than a judicial member. As against a law member without passing a single paper on income tax in his education, a CA has to write two major papers on income tax (also a Third Paper on Tax Planning and Tax Management, if he choses that option) and an IRS passing a major examination on income tax besides decades of experience before they qualify to be accountant members. Getting them into NTT could be anything but dilution in standards of legal knowledgeAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-61755509019309988332010-05-13T11:09:18.150+05:302010-05-13T11:09:18.150+05:30I think that the presence of technical members at ...I think that the presence of technical members at the fact finding level is good. So the accountant members of the ITAT are a good system, and have done plenty of credit to the institution. <br /><br />At the second appeal level or the 'appeal on substantial question of law' level, however, technical members are unnecessary in most fields. Perhaps they might be essential in patent matters, as claim construction (which would probably require basic scientific knowledge) is a question of law. But I think that in other areas of law, a technical member isn't as essential. As an advocate appearing in tax and company matters in Bombay and Karnataka high courts, that is my view- the examples from Bombay of Justices like Rebello, Chandrachud, Khanwilkar, Mohta and others shows that adequate grasp of law is what matters, not (say) high knowledge of advanced accountancy. The same is true of the new CJI Justice Kapadia, under whom hopefully commercial law in the country will develop thoroughly.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-211942094056112672010-05-13T09:28:06.898+05:302010-05-13T09:28:06.898+05:30Ignorance is bliss....enjoy it.
Its difficult to ...Ignorance is bliss....enjoy it.<br /><br />Its difficult to join the issue and express honest comments for several reasons - and even setting out these reasons could probably invite contempt and other proceedings.<br /><br />Time for legal fraternity to do some introspection. There is life beyond mutual admiration societies. If you know not what is wrong with yourself, you can never rectify it. Anyway, it is too much to expect all this from legal fraternity which does not even seriously debate the method of appointment of judges. <br /><br />Good luck; enjoy technical member bashing but please also take a look at their records in Tribunals.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-14640843214566296242010-05-13T00:46:27.076+05:302010-05-13T00:46:27.076+05:30@Anonymous:
I agree it is a landmark judgment; an...@Anonymous:<br /><br />I agree it is a landmark judgment; and is perhaps the most important judgment on the interpretation of Chandra Kumar's case. There is some confusion as to what exactly Chandra Kumar is authority for (over and above the fact that Art. 226/32 are part of basic structure). While this judgment is restricted in final decision to the NCLT, it will certainly have bearing on the NTT and other tribunals.<br /><br />As far as technical members are concerned, the Court appears to have a not too favourable outlook towards them, but perhaps recognises that technical members may be necessary in some cases where specializations are necessary. Perhaps one solution could be in terms of specialization through Benches - if we were to take the example of the Bombay High Court for instance, Justices such as Justice Rebello (and more recently Justice Chandrachud who has been sitting on the tax bench) are perhaps as good an adjudicator as any party would want. Of course, practitioners appearing before Courts regularly would be in a much better position to comment on whether technical members are necessary, or whether Judges/judicial members with specializations in specific areas of law are the solution...Mihir Naniwadekarhttps://www.blogger.com/profile/10774588998184976540noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-21935005626372354272010-05-12T22:58:25.563+05:302010-05-12T22:58:25.563+05:30agree with mr anonymous on technical members(90%. ...agree with mr anonymous on technical members(90%. But in Patent disputes, Scientific knowledge might be necessary).<br /><br />and add these two points also to the courts holding<br /><br />"<br />The second proviso to Section 10FE enabling the President and<br />members to retain lien with their parent cadre/ministry/department while holding office as President or Members will not be conducive for the independence of members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The lien cannot therefore exceed a period of one year."<br /><br />and <br /><br /><br />"The administrative support for all Tribunals should be from the<br />Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department."Niranjan Rajagopalanhttps://www.blogger.com/profile/06439793225348948084noreply@blogger.comtag:blogger.com,1999:blog-3202774368551476669.post-39465624319401629232010-05-12T20:29:21.319+05:302010-05-12T20:29:21.319+05:30The contents of this judgment does perhaps justify...The contents of this judgment does perhaps justify years of waiting; worth all the patience ! Its a landmark judgment in every possible way. <br /><br />Would you not also highlight the fact that perhaps the very institution of technical members deserves to be abolished. I donot think there is anything in the world which lawyers and judges do not understand.Anonymousnoreply@blogger.com