Income-tax---

----Appellate Tribunal---Rectification of mistakes---Advocate---Role of lawyer---Counsel for assessee not raising particular issue at time of hearing by oversight ---Assessee filing miscellaneous petition contending laches of counsel should not make a litigant suffer---Tribunal holding that issues should be deemed to have been decided against assessee or alternatively it could be presumed that same not pressed before Tribunal---Tribunal dismissing miscellaneous petition---No error of law---Indian Income Tax Act, 1961.

Courts have always considered counsel, who, are members of the Bar, as officers of the Court. If the lawyer is considered in the context of the litigation, he has to be understood to have a discretion as to whether to argue a particular point or not. In any proceedings, the role of the lawyer has to be appreciated in the context of his discretion flowing from his engagement in the proceedings. Especially in the context of a litigation urging that he did not raise the issue at the time of hearing by oversight the above background would have to be meaningfully understood in the context of the role of the lawyer. The High Court, being concerned with a situation with reference to the averment relating to the mistake of counsel or his oversight, has to understand and appreciate the situation in the context of the discretion available to him.

The assessee filed a- miscellaneous petition and contended that its counsel did not raise a particular issue at the time of hearing by oversight and such a situation would not preclude the assessee from raising it now since laches on the part of counsel, should not make the litigant suffer. The Tribunal held that it considered it to be a situation deemed to have been decided against the assessee or alternatively it should be presumed that the concerned issue was not pressed before the Tribunal and accordingly dismissed the miscellaneous petition. On a reference:

Held, that if the Tribunal, while rejecting the application, had observed that it should be deemed to have been decided against the assessee or at least it could be presumed that the concerned issue was not pressed before the Tribunal, would have to be understood as having acted in consonance with the recognition of the discretion of counsel.

Joseph Vallamattom and V. J. Kurian Vallamattom for the Assessee.

P. K . R. Menon and N. R. K. Nair for the Commissioner.

JUDGMENT

V. V. KAMAT, J.---We have to answer the following two questions: "(1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal has committed an apparent mistake in covertly upholding the deletion of Rs.21,147 allowed by the Assessing Officer towards cost of improvement while holding that the land value fixed by the acquisition officer included 30 per centtowards development of the land?

(2)Whether the Appellate Tribunal committed an error in not rectifying the above mistake even when raised through a miscellaneous petition?"

These questions have been referred by the Income-tax Appellate Tribunal, Cochin Bench, and they arise out of the order of the Tribunal, dated July 14, 1992. In the above stated order in the miscellaneous petition, the following contentions are reproduced:

The two main grounds contested in the appeal were the inadequacy or the valuation fixed at Rs.300 per cent for the acquired property as on January 1, 1954, for determining the capital gains and the deletion by the Commissioner of Income-tax (Appeals), without ascribing any reason of an amount of Rs.21,147 allowed by the Assessing Officer towards improvement of the property after January 1, 1954.the first ground has been decided by the bench but the second ground left that the acquired property would postulate, that improvements or developments must have made after January 1, 1954. The appellate's counsel did not raise the issue at the time of hearing by oversight. But that will not preclude the appellant from raising it now since any laches on the part of counsel should not make the litigant suffer."

It is clear that, according to the assessee, his counsel did not raise the issue at the time of hearing by oversight and such a situation would not preclude the assessee from raising it now since laches on the part of counsel should not make the litigant suffer.

The Tribunal considered it to be a situation deemed to have been decided against him or alternatively a situation which could be presumed that the concerned issue was not pressed before the Tribunal and accordingly dismissed the miscellaneous petition.

From the statement of case, we find that the questions are reframed as are reproduced hereinabove.

It is the contention of the assessee that counsel did not raise the issue at the time of hearing by oversight. The Tribunal has considered that either it should be deemed to have been decided against the assessee or it should be presumed that the concerned ' issue was not pressed before the Tribunal.

The Courts have always considered counsel, who, are members of the Bar, as officer of the Court. In some other context, one of us (myself) had an occasion to express views about the profession of advocacy and in that context, to draw from the observations of Lord Macmillan of the Privy Council that there is no facet of human activity that does not concern the function of a lawyer. Counselling, advocacy, improving his profession, the Courts and the law, leadership, in moulding 'public 'opinion and unselfish holding of public office, are the five essential functions of a lawyer, commonly known in the traditions of the bar as the five lamps of advocacy. This Court always laid down the spirit that a lawyer requires a healthy deal as they are officers of the Court and regarded as officers of the Court because traditionally they are known to travel with the cause of the client up to a limit and would not deviate there from, even if it is more convenient and suitable for the success of the litigation. If the lawyer is considered in. the context of the litigation, he has to be understood a sufficient arm with a discretion as to whether to -argue a particular point or not. In any proceedings, the role of the lawyer has to be appreciated in the context of his discretion flowing from his engagement in the proceedings. Especially, in the context of a litigation urging that he did not raise the issue at the time of hearing by oversight, the above background will have to be meaningfully understood in the context of the role of the lawyer. This Court, being concerned with a situation with reference to the averment relating to the mistake of counsel or his oversight, has to understand and appreciate the situation in the context of discretion available to him. It is this discretion that is available to counsel that from the basis of a deeming situation for the subsequent occasion calling upon consideration of the situation. It is this discretion of counsel that creates a deeming situation that the aspect should have to be understood to have been decided against the party or even alternatively that the concerned issue was not pressed before the Tribunal. Subsequently, the Court will always have to look at the situation on the basis of the discretion available to an Advocate. The Court has to be more than slow in attributing mistake to counsel with an attitude of an easy approach of a temptation to blame somebody who is absent and far away from the Court still holding the traditional position of being the officer of the Court may be some other than this Court.

In our judgment, if the Tribunal, while rejecting the application, has observed that it should be de med to have been decided against him or at least it could be presumed. that the concerned issue was not pressed before the Tribunal, will have to be understood as having acted in consonance with the recognition of the discretion of counsel.

For all the above reasons, we answer question No. 1 in the affirmative, in favour of the Revenue and against the assessee, and question No. 2 in the negative, in favour of the Revenue and against the assessee.

A copy of this judgment, under the seal of this Court and the signature of the Registrar, shall be forwarded to the Income-tax Appellate Tribunal, Cochin Bench, as required by law.

M.B.A./3383/FCReference answered.