Tributes By Eminent Legal Luminaries To Tax Titan Chief Justice

(1) Shri. Sohrab Erach Dastur, Sr. Advocate

1. Justice Kapadia was the first Chief Justice born in free and independent India (29th September, 1947). This corresponds to his approach in all judicial matters – free and independent in his thinking and in the pronouncement of judgments – not afraid to dissent where necessary. He was enrolled as an advocate of the High Court at Bombay at the age of 27 years, comparatively an old age for such enrolment, but this was because he had to support himself and his family by engaging himself in an employment prior to qualifying as an advocate. Even to educate himself and to go to college, he had to provide his own finance. He did not have a godfather in the profession. Mr. R. A. Gagrat, a fearless solicitor, who used to take on the most difficult cases – which others shied away from – appreciated lawyer Kapadia’s dedication to the profession and took interest in his progress. He later devilled in the Chambers of Mr. Feroze Damania, a leader in the field of labour law. Under his tutelage he developed as a very persuasive lawyer. As an advocate, he handled a variety of different types of litigations and was also a Counsel on the panel of tax lawyers of the Central Government in the High Court. He was meticulous in preparation of cases and was fair in presenting them.

2. In October 1991, he was appointed as an Additional Judge of the High Court at Bombay and was made permanent in March 1993. Ten years later, he was transferred as Chief Justice of the Uttaranchal High Court at Nainital where he was greatly admired. Four months thereafter, he was elevated as a judge of the Supreme Court of India, superseding several other judges on account of his integrity, dedication to work and humility. Six and half years later, on 19th May, 2010 to be precise, he assumed office as Chief Justice of India and held that post for almost two and half years. September was an important month in his life – he was born, enrolled as a lawyer and demitted office as Chief Justice in that month! The care which he took in reading his briefs as a lawyer was also displayed in reading the cases which came before him for decision and Counsel often found that a fact overlooked by him was noted by the Judge. No one could ever question his complete integrity and dedication to the cause of justice. In keeping with his interest in Hinduism and Buddhism, he was also an ascetic in his social life and did not encourage “free mixing” with others in any way, as he believed that it may affect or appear to affect his independence of decision. He toned up the administration in the Supreme Court.

3. He was in great demand as a speaker at various functions and freely expressed his views on several occasions, but he never let this part of his activity in any way affect his full attendance in Court. In the field of tax law, he delivered many path breaking judgments. In Smifs Securities Ltd. 348 ITR 302, he held that goodwill “created” in the process of amalgamaton was an asset in respect of which depreciation was available under section 32 of the Income-tax Act. In Lovely Exports 319 ITR 5 (report of Supreme Court Cases), he held that share subscription money received by a company, if unaccounted, could be added under section 68 not as the income of the company but, if at all, of the subscriber. In TRF Ltd. 323 ITR 397, he upheld an assessee’s right to claim deduction for a bad debt which had been written off without having to prove that it had, in fact, become bad. in Ponni Sugar & Chemicals Ltd. 306 ITR 392 in deciding the thorny issue as to whether a subsidy was on revenue or capital account, he held that it was the object for which the subsidy was given which was the determining factor. Finally, a reference may be made to two decisions which he decided by applying the law, as it stood, even though the facts may have tempted a lesser person to take a contrary view. The first decision is that of Walfort Share & Stock Broker Pvt. ltd. 326 ITR 1 where he upheld a dividend stripping transaction and also laid down important guidelines as to when the disallowing provisions of section 14A can be invoked. In Vodafone’s case 341 ITR 1, he laid down the oft quoted dictum of looking at and not looking through a transaction. The fact that the decision may result in foreign and non-resident assessees avoiding Indian tax did not deter him in holding what was the position in law.

4. Kapadia J’s decision (2006 6 SCC 613), dissenting from the view of his two senior colleagues, in the Lalu Prasad fodder scam case evidenced the high regard he had for the time tested principle that justice must not only be done but be seen to be done. His boldness was also evident in his striking down the appointment of P. J. Thomas (2011 4 SCC 1) as Chief Vigilance Commissioner, a decision which caused some embarrassment to the UPA Government.

5. He never sought any favours from the Government, either as a post retirement benefit or in the form of residential accommodation. He believed that each of the three branches – legislative, executive and judiciary – has its own independent roles to play and one should not encroach on that of the other. In memorable words, he said “Judges must eschew any suggestions that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance”.

6. In the early hours of 5th January, 2016 he passed away (even before he had completed the biblical life span of three score and ten years) as calmly as he had always lived his life. He has left behind him his aged grieving parents, his devoted wife and children and numerous professional and friends who admired a man who never succumbed to the temptations which life offers.

(Source: The Chambers Journal, Volume 4, No 4, Page 10)

(2) Shri N. M. Ranka, Senior Advocate and Past President, AIFTP

I have heard and met Hon’ble Mr. Justice S. H. Kapadia at the National Convention at Mumbai in 2002 while laying down Presidents in favour of my successor dear Dr. K. Shivaram. He was a Hon’ble Judge of the Bombay High Court. I found him simple, sober with deep knowledge of tax, accountancy and other laws. Later, I met him at Delhi after elevation to the Supreme Court at the National Convention. On spotting me, he ordained to keep up with the Ranka Best Conference and other awards to inspire and recognise, who work in educational field. I had the pleasure and privilege to argue an appeal of a co-operative society for two days. Strange, while concluding his Lordship remarked. We have been benefited by your vast experience. I saluted with folded hands and bowed down. In him I found replica of Justice J. S. Verma, Former Chief Justice of India. Unfortunately the God almighty snatched at tender age of 68. I pray Lord Mahaveera to confer peace on the departed soul and give strength to the family and legal fraternity to bear the irreparable injury. My heartfelt condolences.

(3) Dr. K. Shivaram, Senior Advocate, Editor-in-Chief AIFTP Journal

We received the sombre news of the passing of the former Chief Justice of India, Mr. S. H. Kapadia. He served the nation with great distinction as a judge. He was a patriotic son of the nation and served the country with honesty and integrity.

The Federation has had a long association with Late Mr. Justice S. H. Kapadia. When the Federation organised the National Convention at Mumbai in the year 2010, he was the Chief Guest. The programme started in the evening when Justice Kapadia came directly from the Court. The theme of his speech was “Tax evolution to economic revolution”. He spoke from his heart, he touched various issues and closed his speech with the following words “I recommend strongly that for the next 10 years, India should pursue only one point programme viz. Economic Development. Our Country is rich in resources. However, we fritter away those resources by going into non-issues”. He also stated that “your Federation has prescribed a Code of Conduct in which they have laid down the duties of tax lawyers to their clients, to their opponents and to the Court. I recommend one more clause –“Duty to the Country”.

Those who have not read his heart-warming and inspiring speech may do so from the AIFTP Journal, May, 2010 or from the www.itatonline.org. I have preserved his personal congratulatory letter which he wrote to me when I became the National President of the AIFTP.

He was an avid reader of the AIFTP Journal. When he was elevated as the Chief Justice of the Uttaranchal High Court, he requested that the Journal be sent to him in Uttaranchal. He even offered to pay the subscription fees. His fondness of the Journal continued even after his elevation to the Supreme Court and even after his retirement. When the AIFTP and the ITAT Bar Association published the “2003-11 – Digest of Case Laws – Direct taxes– A Tax Companion”, in the year 2012, he purchased one copy for his personal reference, and thereafter every year he requested us to send a copy to him for his reference.

In earlier days, when the budget used to be presented, copies thereof were made available to the public only on next day. As an association, some of our members used to get the copy on the same day. He used to sit in the High Court up to 8.30 in the night and only after receiving the copy from us would he leave for his home. Next day, if any tax matter was to be argued before him, he used to refer to the Finance Bill and told the counsel to look into the Bill.

Whenever any taxation matter was argued before him, he was not carried away with judgments; he used to read the sections, apply the law, general law and thereafter case laws. Many of his landmark judgments in taxation will make him immortal in the history of taxation.

In his court, a counsel’s seniority or otherwise made no difference. I have witnessed that he never used to get carried away even by former Union Ministers appearing before him. He was a great admirer of Shri Nani Palkhivala. He encouraged students to participate in the Nani Palkhivala Moot Court competition, which was the first moot court competition in the country on taxation law.

He was one of the Guests of Honour when the new benches of the ITAT were inaugurated by the then Law Minister Hon’ble Shri Arun Jaitley. He always appreciated the quality of orders passed by the ITAT. In one of the seminars in New Delhi, he stated that when an appeal came before the High Court against the order of the Tribunal, only in very few cases was challenged on grounds of perversity. He had great respect for the tax bar. In his lectures, he used to acknowledge that his elevation to Apex Court was due to tax background.

His enormous contribution to the development of law and especially tax jurisprudence is known and appreciated worldwide.

Justice Kapadia battled acute poverty and hardship to rise from a clerk to the highest post in the Judiciary. He did this through his hard work and perseverance. His attitude towards work: his humility, integrity and compassion made him a symbol of inspiration and role model for every citizen of our country.

He will be a role model to any student of law who desire to work hard and come up in life without any godfather or any political backing. It is only his hard work, sincerity and integrity that made him the Chief Justice of India. He will be remembered by every Indian as an inspiration.

Late Justice Mr. S. H. Kapadia will be missed for his wisdom, humility, passion for taxation and judicial independence. He will be remembered as a great human being, for his determined character, for his patriotism, for being someone who could ignite our minds. His death is a great loss to the nation. I must acknowledge that for many of us, as long as we live, Justice Kapadia will live with us. A tribute to him in true sense will be adopting his desire that – we should always remember “Duty to the Country”. As a tribute to him we desire to come out with a publication in association with the ITAT Bar Association.

On behalf of the tax bar, I take this opportunity to express our deepest condolences to his family.

(4) Dr. M. V. K. Moorthy, Advocate and National President, AIFTP

The dawn of new year 2016 while ushering in a new era of global competitiveness to the learned members of professional fraternity, has also perpetuated an irreparable loss to the entire nation with the sudden & sad demise of the most venerable top most judicial officer Justice S. H. Kapadia, in Mumbai on 5-1-2016. His loss cannot simplicities be to the family members but a profusely effectuating one to the total Indian judicial world. A legend in judiciary a rare gem of virtues of integrity & upright in vision & thoughts. The Court whichever he adorned is a school of learning to every advocate. Junior or senior at the Court is respected & treated alike. A person of versatile knowledge & voracious reader. I always cherish the sweet memories of arguing before a great legal luminary in a number of briefs both for citizens as well as state. I as individual counsel closely known as also the National President of All India Federation of Tax Practitioners convey heartfelt condolences to the members of bereaved family and simultaneously feel proud to have been associated with a such a widely respected Justice to whom we pay rich Tributes to his glorious life as the unquestionable lover of impartiality & unshaken faith in Justice.

(5) Prem Lata Bansal, Senior Advocate & Deputy President, AIFTP

On 5th January, 2016, the nation was stunned by painful reality of passing away of former Chief Justice of India, Hon’ble Mr Justice S. H. Kapadia. 5th January, 2016 has left behind a multitude of grief stricken judiciary, the lawyers, the litigants and the entire nation.

Born into a poor Parsi family, just after India’s independence, starting the career as Class-IV employee, rose higher and higher through his inhumanly hard work to become one of the most finest Judges of the country.

He always led an ethical and moral life. In the initial stage of practice as lawyer, he fought for the poor and downtrodden people. He gave up a lucrative professional career at his prime, in favour of judgeship.

He was not only a model Judges but also a symbol of inspiration and a role model of all professionals. He was a Judge of impeccable integrity.

He was fond of the tax laws. He used to say if one can master the tax laws, one can master any law. He was well conversant with principles of economics and accountancy. He delivered various landmark judgments on taxation side whilst sitting in the Bombay High Court such as IPCA Laboratories, 251 ITR 416 (Bom), K K Doshi, 245 ITR 849 (Bom), Shirke Construction, 246 ITR 429 (Bom), Sudershan Chemicals, 245 ITR 769 (Bom), Indo Nippon, 245 ITR 384 (Bom).

Even in the Supreme Court, he showed his affinity for the subject by sitting on the tax Bench throughout his tenure and passed several landmark judgments such as Morgan Stanley, 292 ITR 416 (SC) (Transfer Pricing), Lakshmi Machine Works, 290 ITR 667 (SC) (Sec 80HHC), Hundai Heavy Industries Co. Ltd, 291 ITR 482 (SC) (offshore supply profits), GE India Technology Centre (P) Ltd, 327 ITR 456 (SC) (Scope of Sec 195 TDS) etc. In fact, Justice Kapadia chose to end his illustrious career with the Vodafone Case, 341 ITR 1 (SC), the most celebrated case in tax jurisprudence.

Not only in taxation side, he laid down the law in many important cases such as 2G case, Sahara case, in arbitration law. He also delivered the judgement upholding the constitutional validity of the revolutionary right to Education Act. These judgments will be the legacy of Chief Justice Kapadia for the several decades to come.

Hon’ble Mr. Justice Kapadia, though is not with us in flesh and blood, his relentless perseverance, compassion and dedication to cause of justice will live on for all time to come. He will be remembered with great reverence and feeling of indebtedness. To adopt the ethics and moral values set by him will be the great tribute to this legendary personality.
May the departed soul rest in peace in the Vicinity of God and we pray the almighty to give strength to the family and legal fraternity to bear this irreparable loss.

(6) P. C. Joshi, Advocate & Past President, AIFTP

I was shocked to learn about the sad demise of our beloved Hon’ble Mr. Justice Shri. S. H. Kapadia.

Ever seems he was appointed on 8th October, 1991, as a judge of the Bombay High Court I had the privilege of appearing before him in some of my matters.

Prior thereto, he was the standing counsel for the Income Tax Dept., and therefore he had a soft corner in his heart for the tax Bar. As a presiding judge at the High Court as well as the Supreme Court he was very meticulous and perfect in his approach. While in the High Court he was a regular judge reaching the court premises daily much before its schedule time. Apparently he was a strict follower of the letter of law without having any regard as to the status of the parties before him or the counsel arguing the matter; he was very considerate when a junior was to argue a matter.

While delivering the judgments he as a good judge considered all aspects of the points / controversy involved. That habit gave him an opportunity to have a judicial activism and contribution towards the development of law.

In one of the conference arranged by AIFTP when I welcomed him to the venue he immediately recalled his association with the Bombay Bar and enquired about some of the counsel who used to appear regularly before the tax Bench. In fact he publicly recalled my meeting him while addressing the inaugural session.

He was one of the few chiefs amongst many Chief Justices not to accept any Govt. posting after retirement on 29th Sept, 2012. He enjoyed his short retired life while being with his family and friends without any constraint of a judicial luminary.

He leaves behind hundreds of his followers apart from his family. Being one of the Shining Star amongst the judiciary he will be remembered for his pro-active judicial activism towards law development and the Ld. Judgments.

For such a great departed soul I pray God Almighty bestow eternal peace.

(7) M. L. Patodi, Advocate and Past President, AIFTP

I was saddened to know that Hon’ble Mr. Justice S.H. Kapadia has gone on his heavenly abode on 5th January, 2016. He was a very sober & simple man and having in-depth knowledge particularly of tax laws. While he was in his office, he had given very remarkable judgments on various issues. I had the opportunity of meeting him personally when I was National President of All India Federation of Tax Practitioners. We have been benefited by his vast experience. He was a man who will be remembered by the tax fraternity for years together.

I covey my heartfelt condolences and pray to Almighty to grant peace to the departed soul and strength & courage to the bereaved family to bear this irreparable loss in this hour of grief.

(8) J. D. Nankani, Advocate & Immediate Past President, AIFTP

For those who personally knew Mr. Justice Sarosh H. Kapadia, he was the epitome of simplicity. He would never tolerate any lax conduct by any professionals appearing before him.

His life story is an inspiration for many. From a Class IV employee to starting practice as a junior in the chamber of a labour lawyer to trying securities scam matters as Special Judge in Bombay High Court and deciding large tax disputes as a Judge in Bombay High Court and as the Chief Justice of India, stand out as the true examples of how hard working and versatile he was.

Like many of his colleagues he did not ‘retire’ after crossing the age of retirement, but worked till the last day in his life. There can be no doubt that the legal fraternity will miss him presence and guidance, and much more in Mumbai.

May his soul rest in peace.

(9) Porus F. Kaka, Senior Advocate & President, International Fiscal Association

Passing away of Justice Kapadia was a sad day for the Indian Judiciary and the country.

Chief Justice Kapadia was an exceptional person, judge and human being. He brought back respect for the Supreme Court with his sterling integrity, his landmark judgments, and for all those connected with Tax he brought “Taxation issues” back into the Chief Justice’s Court. He was a great contributor to IFA.

My late father and myself were fortunate to have known him personally, and I will miss him deeply. His life story from his junior days as an Advocate without privileged connections to becoming the Chief Justice of India is an inspiration to many. The country has lost a great judge and above all a highly ethical human being.

May his soul rest in peace and may God give his family the strength to bear this irreparable loss.

(10) Subhash S. Shetty, Advocate & President – ITAT Bar Association, Mumbai

On the sad demise of Justice Kapadia, the nation as a whole and legal fraternity in particular, has lost a rare legal gem. His attitude towards work, his sense of humility, impeccable integrity and compassion makes him a symbol of inspiration and role model for all professionals. Though he came from a humble background, through sheer dint of hardwork and perseverance, he rose to the highest post in the judiciary. He proved that you don’t need to have a godfather to succeed in the legal profession. He became very popular because of his even handed approach and ability to quickly grasp the core point in any dispute. He used to say that if one can master the income tax law, one can master any law. He took notice of junior advocates and encouraged them. Justice Kapadia restored the faith of people in judiciary.

We pray that the departed soul rest in peace and may the Almighty give strength to his family and legal fraternity to bear this irreparable loss.

(All tributes are reproduced with permission from the AIFTP Journal and The Chambers Journal)

(See Also: Chief Justice Kapadia: Inspiring Story Of Journey From Clerk To Chief Justice and Demise Of Tax Titan Chief Justice, Avid Reader Of The AIFTP Journal, Leaves A Void)