Income Tax Officer Ward-1 & TPS , Bagalkot V. Shri Devendrappa Basappa Pujar , Bagalkot

ITA 2483/BANG/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7579 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 23-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N TAPASHETTI
• Keywords: Onus to prove
• Section: 139

Judgement Text

ITA.2483/BANG/2017 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'C', BENGALURU BEFORE SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER I.T.A NO.2483/BANG/2017 (ASSESSMENT YEAR : 2012-13) INCOME-TAX OFFICER, WARD -1 & TPS, BAGALKOT .. APPELLANT V. SHRI. DEVENDRAPPA BASAPPA PUJAR, ADVOCATE, PLOT NO.79, SECTOR NO.20, NAVANAGAR, BAGALKOT .. RESPONDENT PAN : AXZPP9287E ASSESSEEEE BY : SHRI. N. TAPASHETTI, CA REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT HEARD ON : 05.07.2018 PRONOUNCED ON : 25.07.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THE PRESENT APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT (A), BELAGAVI, DT.14.09.2017, FOR THE A. Y. 2012-13, RAISING THEREIN, THE FOLLOWING GROUNDS OF APPEAL : ITA.2483/BANG/2017 PAGE - 2 2. THE ASSESSEE FILED RETURN OF INCOME BELATEDLY ON 12.04.2013, DECLARING TOTAL INCOME OF RS.1,75,740/-. A SURVEY WAS CARRIED OUT AT THE PROFESSIONAL PREMISES OF THE ASSESSEE ON 11. 03.2014. DURING THE COURSE OF SURVEY, STATEMENT OF THE ASSESSEE WAS RECORDED AND IT WAS FOUND THAT THE ASSESSEE HAD MADE INVESTMENT IN IMMOVABLE / MOVABLE PROPERTIES AND HAS ALSO DEPOSITED AS CASH I N SAVINGS BANKON VARIOUS DATES WITH KARNATAKA VIKAS GRAMEEN BANK, BAGALKOT AND NAVANAGAR-BAGALKOT BRANCH. ON GOING T HROUGH THE SB ACCOUNT NO.17117016006 WITH KARNATAKA VYSYA GRAM EENA BANK, BAGALKOT, IT WAS NOTICED THAT AN AMOUNT OF RS .5,93,00,000/- ITA.2483/BANG/2017 PAGE - 3 WAS TRANSFERRED FROM SB A/C NO.89007565677, OF MALI YAPPA PARASAPPA JUMMANAKATTI, WARD-1, BAGALKOT ON 25.11.2 011 AND AN AMOUNT OF RS.3,80,00,000/- CRORES WAS CREDITED ON 2 6.03.2012 FROM THE ACCOUNT NO.89011394706 IN THE NAME OF SURENDRA LAXMANRAO VAIDYA. DURING THE COURSE OF SURVEY THE ASSESSEE W AS ASKED TO EXPLAIN. HOWEVER THE ASSESSEE FAILED TO FURNISH TH E DETAILED EVIDENCE IN RESPECT OF THE ABOVE ENTRIES AND THEREF ORE THE AO VIDE LETTER DT.14.11.2014, REQUESTED TO FURNISH DETAILS / EVIDENCE ON OR BEFORE 25.11.2014. THEREFORE A DEFECT NOTICE WAS I SSUED ON 12.12.2014. THE ASSESSEE WAS ASKED BY THE AO TO PR ODUCE THE SAID TWO PERSONS NAMELY MALIYAPPA PARASAPPA JUMMANAKATTI AND SURENDRA LAXMANRAO VAIDYA, FROM WHOM THE AMOUNTS WE RE TRANSFERRED TO THE ASSESSEEES ACCOUNT. THE STATEM ENT OF THE SAID PERSONS WERE RECORDED AND MALIYAPPA PARASAPPA JUMMA NAKATTI HAS CONFIRMED THAT THE AMOUNTOF RS.5,93,00,000/- WAS RE CEIVED AS COMPENSATION AND WAS GIVEN TO THE SON-IN-LAW OF D. B. PUJAR (ASSESSEE). HOWEVER, SURENDRA LAXMANRAO VAIDYA HAD FILED AN AFFIDAVIT STATING THAT THE AMOUNT OF RS.3.8 CRORES WAS PAID BY THE SAID SURENDRA LAXMANRAO VAIDYA AS PROFESSIONAL FEES TO THE ASSESSEEE, AS HE REPRESENTED HIS LAND ACQUISITION C ASE BEFORE THE COURT. IN PURSUANCE THERETO THE ASSESSEE FILED AN AFFIDAVIT ON 18.12.2014 AND SUBMITTED THAT THE AMOUNT WAS PAID B Y THE SAID SURENDRA LAXMANRAO VAIDYA ON ACCOUNT OF PROFESSIONA L FEES, WITH A VIEW TO PREVENT THE ASSESSEE FROM GOING TO THE COUR T AS THE LAND WAS CULTIVATED BY HIS FAMILY FOR THE LAST 5 YEARS. THE ASSESSEE HAD FAILED TO PRODUCE THE SAID SURENDRA LAXMANRAO VAIDYA AND H AS ALSO NOT PRODUCED ANY EVIDENCE SHOWING THE CULTIVATION OF TH E LAND BY ITA.2483/BANG/2017 PAGE - 4 FAMILY OF THE ASSESSEE FOR THE LAST FIFTY YEARS. I N VIEW OF THE ABOVE, THE AO HAD MADE AN ADDITION OF RS.3.8 CRORES AS PRO FESSIONAL FEES AND HAD ALSO MADE ADDITION OF RS.1,17,49,649/- ON A CCOUNT OF THE DEPOSIT/ TRANSFERS IN THE SB ACCOUNT. FEELING AGGR IEVED BY THE ASSESSEE, THE ASSESSEE PREFERRED AN APPEAL BEFORE T HE CIT (A). 03. THE CIT (A) HAD SOUGHT THE REMAND REPORT FROM T HE AO AND THEREAFTER HAD GRANTED SUBSTANTIAL RELIEF TO THE AS SESSEE. HENCE REVENUE IS IN APPEAL BEFORE US WITH RESPECT TO THE RELIEF GRANTED BY THE CIT(A ) ON THE FINDINGS GIVEN IN PARA 6.1 TO TH E FOLLOWING EFFECT : 6.1 I AM OF THE OPINION THAT THE TOTAL PROFESSIONA L RECEIPTS CANNOT BE TREATED AS NET PROFIT OF THE BUS INESS AND PROFESSION. NATURALLY, CONSIDERING THE NATURE OF P ROFESSION IT HAS SOME EXPENDITURE TO EARN THIS AMOUNT. I AM OF THE OPINION THAT 25% OF GROSS RECEIPTS MAY BE TREATED AS HIS PR OFESSIONAL INCOME ALLOWING 75% TO BE NORMAL EXPENSES ON ESTIMA TION TO MEET VARIOUS EXPENSES INCURRED. THEREFORE, I CONSI DER @ 25% AS ASSESSEES INCOME AFTER ALLOWING 75% EXPENDITURE ON TOTAL PROFESSIONAL RECEIPTS OF RS.3,80,00,000/-. ADDITIO N OF RS.95,00,000/- (RS.3,80,00,000/- @ 25%) ON THIS ACC OUNT IS CONFIRMED AND THE BALANCE OF RS.2,85,00,000/- IS DE LETED. 04. BEFORE US THE LD. DR HAS SUBMITTED THAT THERE W AS NO BASIS WHATSOEVER IN LAW TO TREAT ONLY 25% OF THE GROSS RE CEIPT AS PROFESSIONAL FEES AND ALLOWING 75% AS NORMAL EXPENS ES ON ESTIMATE BASIS AND THUS GRANTED RELIEF OF RS.2.85 CRORES TO THE ASSESSEE. 05. ON THE OTHER HAND THE LD. AR HAS SUBMITTED THAT THE ASSESSEE WAS NOT AN ADVOCATE, BUT WAS MERELY AN AGRICULTURIS T AND HAS REITERATED THE SAME STAND AS SUBMITTED BEFORE THE A O. ITA.2483/BANG/2017 PAGE - 5 06. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE AO IN THE ASSESSMENT ORDER HAS MENTIONED THAT T HE ASSESSEE VIDE HIS LETTER DT.7.11.4 REPRESENTED THROUGH CA M N TAPASHETTI AND SOUGHT A DATE ON THE GROUND THAT THE ASSESSEE IS AN ADVOCATE AND MOST OF THE TIME HE WILL BE OUT OF STATION ON ACCO UNT OF PROFESSIONAL WORK AND THEREFORE OFFICER WAIVED THE REQUIREMENT OF STATUTORY NOTICE. THIS FACT, CLEARLY SHOWS THAT THE ASSESSEE IS AN ADVOCATE AND THE GROUND RAISED BY THE ASSESSEE THAT THE AMOUNT W AS PAID ON ACCOUNT OF COMPENSATION TO THE ASSESSEE WITH A VIEW TO PREVENT HIM FROM GOING TO THE COURT AS THE FAMILY OF THE ASSESS EE WAS CULTIVATING THE LAND FOR FIFTY YEARS, HAS NO LEGS TO STAND AND THIS STAND OF THE ASSESSEE ,ON THE FACE ITSELF IS REQUIRED TO BE REJE CTED. IN OUR VIEW ONCE THE ASSESSEE IS AN ADVOCATE, UNDER THE ADVOCAT ES ACT, THE ASSESSEE IS NOT REQUIRED TO CARRY OUT ANY OTHER BUS INESS SAVE AND EXCEPT IN ACCORDANCE WITH THE ADVOCATES ACT, 1961. IF WE ASSUME THE CONTENTION OF THE ASSESSEE IS CORRECT THEN ALSO THE ASSESSEE IS REQUIRED TO SHOW THE POSSESSION AND CULTIVATION OF LAND FOR THE LAST FIFTY YEARS. ADMITTEDLY NO DOCUMENT WAS FILED BEFOR E THE LOWER AUTHORITIES IN THIS REGARD. 07. IF A PERSON IS IN POSSESSION AND CULTIVATING TH E LAND THEN, UNDER THE LAND ACQUISITION ACT, SUCH PERSON IS ENTI TLED TO RAISE A DISPUTE U/SS.31 TO 33 OF THE LAND ACQUISITION ACT B EFORE THE LAND ACQUISITION COLLECTOR AND THEREAFTER BEFORE A COURT OF LAW. FURTHER , LAC AWARD WOULD SHOW THE NAME OF THE PERSON IN POSS ESSION OF THE LAND AND WHETHER HE IS ENTITLE TO ANY COMPENSATION ON ACCOUNT OF HIS POSSESSION . IRONICALLY NONE OF THESE HAS HAPPENED IN THE PRESENT ITA.2483/BANG/2017 PAGE - 6 CASE, AS NO DOCUMENT OF FILLING THE DISPUTE BEFORE THE LAC OR SHOWING THE POSSESSION WAS FILLED BY THE ASSESSEE . THEREFORE WE DO NOT FIND ANY REASON TO AGREE WITH THE CONTENTION OF THE ASSESSEE, THAT THE AMOUNT WAS RECEIVED AS HE WAS ( FAMILY OF ASSESSEE ) WERE IN POSSESSION OF THE PROPERTY.. IN VIEW THEREOF WE HAVE NO HESITATION TO HOLD THAT THE ASSESSEE HAS RECEIVED A N EXORBITANT PROFESSIONAL CHARGES OF RS.3.8 CRORES FROM SURENDRA LAXMANRAO VAIDYA. 08. NOW THE NEXT QUESTION IS WHETHER THE ACTION OF CIT (A ) WAS RIGHT IN TREATING 7% OF PROFESSIONAL CHARGES AS NOR MAL EXPENSES ON ESTIMATE BASIS WAS CORRECT. IN THIS REGARD THE ASS ESSEE HAS FAILED TO FILE ANY DOCUMENT ETC OR EVIDENCE IN SUPPORT OF INC URRING SUCH HUGE EXPENSE OF RS.2.85 CRORES IN THE ASSESSMENT YEAR. FOR THAT PURPOSES, IF WE LOOK INTO THE AMOUNT RS.2.85 CRORES AS EXPENDITURE THEN THERE SHOULD BE CORRESPONDING WITHDRAWAL FROM THE ACCOUNTS OF THE ASSESSEE. HOWEVER WE NOTICE THAT INSTEAD OF TH IS THE ASSESSEE HAD MADE THE INVESTMENT FROM THE SAID AMOUNT IN LAN D AND OTHER PROPERTIES. SECONDLY FOR THE PURPOSE OF CLAIMING T HE EXPENDITURE OF SIMILAR NATURE THE ASSESSEE COULD HAVE SHOWN THE SA ME EXPENDITURE EITHER IN THE PRIOR OR SUBSEQUENT ASSESSMENT YEAR. BUT THE ASSESSEE HAS FAILED TO SHOW ANY SUCH EVIDENCE EITHER IN THE PRIOR OR SUBSEQUENT ASSESSMENT YEAR EVINCING THE SIMILAR OR SAME KIND OF EXPENDITURE HAVING BEEN INCURRED BY THE ASSESSEE. EVEN OTHERWISE, IT IS NOT COMPREHENSIBLE TO CONSIDER FOR EARNING TH E PROFESSIONAL FEES OF RS.3.8 CRORES , AN ADVOCATE WOULD INCUR AN EXPEN DITURE OF ITA.2483/BANG/2017 PAGE - 7 RS.2.85 CRORES ,ACCORDINGLY FIND THAT THE ORDER PAS SED BY THE CIT (A) IS WITHOUT ANY MERIT. 09. LASTLY WE WOULD LIKE TO BRING ON RECORD THE REC ENT JUDGMENT OF THE HONBLE SUPREME COURT, WHEREIN THE HONBLE S UPREME COURT HAS DEPRECATED THE PRACTICE, IN THE CASE OF MOTOR A CCIDENT CLAIMS TRIBUNAL AND HELD THAT IT IS NOT BEFITTING THE STA TUS OF THE ADVOCATES TO CHARGE FEES ON PERCENTAGE OF THE COMPENSATION FR OM THE POOR LITIGANTS. IN THE PRESENT CASE ALSO THE PERSON WHO SE LAND WAS ACQUIRED SEEMS TO BE POOR AND AN ILLITERATE PERSON AND IT IS NOT EXPECTED FROM THE ADVOCATE TO CHARGE SUCH A HUGE AM OUNT OF FEES FROM THE LITIGANT. THE HONBLE SUREME COURT IN THE MATTER OF B. SUNITHA V. STATE OF TELANGANA AND ANOTHER [(2018) 1 SCC 638] IN PARA 12 TO 19 HAS HELD AS UNDER : 12. THE FIRST QUESTION WHICH NEEDS CONSIDERATION IS WHETHER FEE CAN BE DETERMINED WITH REFERENCE TO PE RCENTAGE OF THE DECRETAL AMOUNT. SECOND QUESTION IS WHETHER THE DET ERMINATION OF FEE CAN BE UNILATERAL4 AND IF THE CLI ENT DISPUTES THE QUANTUM OF FEE WHETHER THE BURDEN TO PROVE THE CONT RACT OF FEE WILL BE ON THE ADVOCATE OR THE CLIENT. THIRD QUESTION IS WHETHER THE PROFESSIONAL ETHICS REQUIRE REGULATION OF EXPLOITATION IN THE MATTER OF FEE. 13. ONE OF THE ISSUES WAS DEALT WITH BY A SINGLE BE NCH JUDGMENT OF THE MADRAS HIGH COURT IN C. MANOHAR VERSUS B.R. POORNIMA5. R. BANUMATHI, J (AS HER LORDSHIP THEN WA S) HELD THAT NO PRESUMPTION COULD ARISE MERELY BY I SSUANCE OF A CHEQUE THAT AMOUNT STIPULATED IN THE CHEQUE WAS PAY ABLE TOWARDS FEE. IN ABSENCE OF INDEPENDENT PROOF, ISSUANCE OF CHEQUE COULD NOT FURNISH CAUSE OF ACTION UNDER SECTION 138 OF THE ACT IN THE CONTEXT 4 J.S. VASU VERSUS STATE OF PUNJAB (1994) 1 SCC 184, PARA 20 5 (2004) CRL.L.J 443 OF A N ADVOCATE OR CLIENT. THE OBSERVATIONS RELEVANT IN THE CONTEXT ARE AS FOLLOWS : THE CASE IN HAND IS AN EXAMPLE OF THE PRESENT DAY TREND OF THE LEGAL PROFESSION. LEGAL PROFESSION IS ESSENTIALLY SERVICE ORIENTAL. ANCESTOR OF TODAY'S LAWYERS WAS NO MORE T HAN A SPOKESPERSON, WHO RENDERED HIS SERVICES TO TH E NEEDY MEMBERS OF THE SOCIETY, BY PUTTING FORTH THEIR CASE BEFORE THE AUTHORITIES. THEIR SERVICES WERE RENDERED WITHO UT REGARD TO REMUNERATION RECEIVED OR TO BE RECEIVED. WITH THE G ROWTH OF LITIGATION, LEGAL PROFESSION BECAME A FULL TIME OCCUPATION. THE TREND OF THE LEGAL PROFESSION HAS CHANGED ... P ROFESSION HAS ALMOST BECAME A TRADE. THERE IS NO MO RE SERVICE ORIENTATION. 12. THE RELATIONSHIP BETWEEN THE LAWYER AND THE CLI ENT IS ONE OF TRUST AND CONFIDENCE. THE CLIENT ENGA GES A LAWYER FOR PERSONAL REASONS AND IS AT LIBERTY TO LEAVE HIM FOR THE SAME REASONS. CONSIDERING THE RELATIONSHIP BET WEEN THE LAWYER AND THE CLIENT AND THE PRESENT DAY TREND IN THE PROFESS ION, IT HAS TO BE CAREFULLY SEEN WHETHER THE COMPLA INANT HAS PROVED THAT THE AMOUNT DUE OF RS. 43.600/- IS BEING PAYABLE TOW ARDS HIM. 13. TO ATTRACT THE PENAL PROVISIONS UNDER SECTION 1 38 N. I. ACT, A CHEQUE MUST HAVE BEEN DRAWN BY THE ACCUSED ON AN ACCOUNT MAINTAINED BY HIM WITH A BANKER FOR PAYMENT OF ANY AMOUNT OF MONEY TO ANOTHER PERSON FROM OUT OF THAT ACCOUNT FOR THE DISCHARGE IN WHOLE OR IN PART, OF A NY DEBT OR OTHER LIABILITY DUE. THAT MEANS, THE CHE QUE MUST HAVE BEEN ISSUED IN DISCHARGE OF DEBT OR OTHER LIABILITY WHOL LY OR IN PART. THE CHEQUE GIVEN FOR ANY OTHER REASO NS NOT FOR THE SATISFACTION OF ANY DEBT OR OTHER LIABILITY, EVEN I F IT IS RETURNED UNPAID-, WILL NOT MEET WITH PENAL CONSEQUENCES. 14. CASE OF THE COMPLAINANT IS THAT ON BEHALF OF TH E ACCUSED, HE HAS FILED CLAIM PETITIONS IN M. C. O. P. NOS. 2339 OF 1992 AND 246 OF 1993. TWO CIVIL CASES WERE ALSO FIL ED. THERE IS NOTHING TO SHOW THAT THE COMPLAINANT/A DVOCATE HIMSELF HAS PAID THE STAMP DUTY AND BORE THE LEGAL FEES. TH E COMPLAINANT HAS NOT PRODUCED ANY AGREEMENT SHOWIN G AS TO WHAT WAS THE ARRANGEMENT BETWEEN HIM AND THE ACCUSED, AS TO HOW MUCH IS THE FEE PAYABLE AND WHETHER THE ACC USED AGREED FOR PAYMENT OF STAMP DUTY BY HER COUNSEL ITSELF. IN THE ABSENCE OF ANY AGREEMENT, EX. P-1 CHEQUE CANNO T BE SAID TO HAVE BEEN ISSUED FOR THE PURPOSE OF DISCHARGE OF ANY SUB STANTIAL DEBT OR LIABILITY. URGING THE COURT TO RAI SE THE PRESUMPTION ITA.2483/BANG/2017 PAGE - 8 UNDER SECTION 139 N. I. ACT, THE LEARNED COUNSEL FO R THE APPELLANT HAS RELIED UPON M/S. MODI CEMENTS L TD. VERSUS KUCHIL KUMAR NANDI [(1998) 3 SCC 249] WHEREIN THE SUPREME COURT HAS HELD THAT ONCE THE CHEQUE IS ISSUED BY TH E DRAWER A PRESUMPTION UNDER SECTION 139 N. I. ACT MUST FOLLOW AND MERELY BECAUSE THE DRAWER ISSUES A NOTICE TO T HE DRAWEE (PAYEE) OR TO THE BANK FOR STOPPAGE OF THE PAYMENT IT WILL NOT PRECLUDE AN ACTION UNDER SECTION 138 OF THE ACT BY THE DRAWEE (PAYEE) OR THE HOLDER OF A CHEQUE IN DUE COU RSE. OF COURSE, UNDER SECTION 139 N. I. ACT, THERE IS A PRESUMPTION THAT UNLESS THE CONTRARY IS PROVED, THE HOLDER OF T HE CHEQUE RECEIVED THE CHEQUE FOR THE DISCHARGE IN WHOLE OR IN PART OF ANY DEBT OR OTHER LIABILITY. BUT EVEN IN SECTION 13 9 N. I. ACT, THE LEGAL PRESUMPTION IS CREATED ONLY FOR THE CHEQUE SO RECEIVED FOR THE DISCHARGE IN WHOLE OR IN PART OF ANY DEBT OR OTHER LIABILITY. IN THE CASE ON HAND, THE COMPLAINA NT BEING A PRACTISING ADVOCATE, HAS NOT PROVED THE DEBT AMOUNT PAYABLE TOWARDS HIM BY THE ACCUSED, WHO HAS ENGAGED HIM AS HIS LAWYER TO CONDUCT THE CASE. THE FINDING OF THE TRIAL COURT THAT THERE IS NO DEBT OR LEGALLY ENFORCEABLE LIABILITY' DOES NOT SUFFER FROM ANY INFIRMITY WARRANTING INTER FERENCE. 14. THE BOMBAY HIGH COURT IN RE: KL GAUBA6 HELD THA T FEES CONDITIONAL ON THE SUCCESS OF A CASE AND WHI CH GIVES THE LAWYER 6 AIR 1954 BOM 478 AN INTEREST IN THE SUBJEC T MATTER TENDS TO UNDERMINE THE STATUS OF THE PROFE SSION. THE SAME HAS ALWAYS BEEN CONDEMNED AS UNWORTHY OF THE LEGAL PROFESSION. IF AN ADVOCATE HAS INTEREST IN SUCCESS OF LITIGATION, HE MAY TEND TO DEPART FROM ETHICS. 15. IN IN THE MATTER OF MR. G.: A SENIOR ADVOCATE O F THE SUPREME COURT7, THIS COURT HELD THAT THE CLAI M OF AN ADVOCATE BASED ON A SHARE IN THE SUBJECT MATTER IS A PROFESS IONAL MISCONDUCT. 16. IN VC RANGADURAI VERSUS D. GOPALAN 8, IT WAS OB SERVED THAT RELATION BETWEEN A LAWYER AND HIS CLIEN T IS HIGHLY FIDUCIARY IN NATURE. THE ADVOCATE IS IN THE POSITIO N OF TRUST. 17. RULE 20 OF PART VI, CHAPTER II, SECTION II OF T HE STANDARD OF PROFESSIONAL CONDUCT AND ETIQUETTE R EADS AS FOLLOWS : AN ADVOCATE SHALL NOT STIPULATE FOR A FEE CONTINGE NT ON THE RESULTS OF LITIGATION OR AGREE TO SHARE T HE PROCEEDS THEREOF. 18. THUS, MERE ISSUANCE OF CHEQUE BY THE CLIENT MAY NOT DEBAR HIM FROM CONTESTING THE LIABILITY. IF LI ABILITY IS DISPUTED, THE ADVOCATE HAS TO INDEPENDENTLY PROVE THE CONTRAC T. CLAIM BASED ON 7 (1955) 1 SCR 490 8 (1979) 1 SCC 308, PARA 31 PERCENTAGE OF SUBJECT MATTER IN LITIGATION CANNO T BE THE BASIS OF A COMPLAINT UNDER SECTION 138 OF THE ACT. 19. IN VIEW OF THE ABOVE, THE CLAIM OF THE RESPONDE NT ADVOCATE BEING AGAINST PUBLIC POLICY AND BEING A N ACT OF PROFESSIONAL MISCONDUCT, PROCEEDINGS IN THE COMPLAI NT FILED BY HIM HAVE TO BE HELD TO BE ABUSE OF THE PROCESS OF LAW AND HAVE TO BE QUASHED. FOLLOWING THE RATIO LAID DOWN BY THE HONBLE SUPREM E COURT, WE REVERSE THE ORDER OF CIT(A) AND UPHOLD THE ORDER OF AO. 10. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH DAY OF JULY, 2018. SD/- SD/- (INTURI RAMA RAO) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBE R BENGALURU DATED : 25.07.2018 MCN* ITA.2483/BANG/2017 PAGE - 9 COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.