My Quora Answer to : Can an IA be filed while a court case is under CAV (i.e., judgement reserved)

My Quora Answer to : 

Can an IA be filed while a court case is under CAV (i.e., judgement reserved)

If only absolutely necessary, and is inevitable.

An Interim Application can be filed, when the case is reserved for passing Judgement, provided it is not amounting to abuse of process of the Court, and it is in the interest of justice.

Supreme Court J. P. Sathasivam, Jagdish Singh Khehar, have opined in their judgment in “M/S Bagai Construction Tr.Prop vs M/S Gupta Building Material Store on 22 February, 2013”:

“19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.

12) After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.[1]

Also, Karnataka HC - J. N Jain, V Sabhahit in “Rabiya Bi Kassim M. vs The Country Wide Consumer ... on 5 April, 2004” reported at ILR 2004 KAR 2215, and 2004 (4) KarLJ 189:

Even if we assume it for the sake of argument without accepting, in view of the amendment in CPC, as we find, the law relating to procedure in suits and civil proceedings are governed by CPC, The CPC has been amended from time to time.

Recently also, in order to cut short the delays at various levels in disposal of civil cases, CPC was amended by the Amendment Act of 1999 with effect from 1.7.2002.

In the facts of the given case, sufficient opportunity was given to the plaintiff to complete his evidence, but he has not availed the opportunity at appropriate time and thereafter his evidence was closed. The case was fixed for defendant's evidence and ultimately the case was heard and reserved for judgment on 20.6.2001.

In our view, if the matter is reserved for pronouncement of judgment, such an application is not maintainable as otherwise it will defeat the very object of amendment in speedy disposal of the cases.[2]

It is seen by all, and also observed by the Courts that one of the major causes of delay in decision of suit, is the practice of seeking and granting time, delaying in filing of written statements and objections, filing excessive number of Interim Applications, delaying leading of evidence, and seeking adjournments for frivolous reasons.

The Supreme Court in ARJUN SINGH v. MOHINDRA KUMAR, has held that once the matter has been finally heard and posted for judgment, the Court has only to pronouncement the judgment.

After the deletion of the Clause (4) of Order 18 Rule 2

it clearly shows that it is not the intention of the Legislature to permit filing of the interlocutory application, even after the arguments are heard and the matter is reserved for pronouncement of judgment, and therefore, such interlocutory applications cannot be entertained..[3]

Footnotes

[1] M/S Bagai Construction Tr.Prop vs M/S Gupta Building Material Store on 22 February, 2013

[2] Rabiya Bi Kassim M. vs The Country Wide Consumer ... on 5 April, 2004

[3] Arjun Singh vs Mohindra Kumar & Ors on 13 December, 1963

Contract Killings and Punishment

Anybody could be a hired killer in Delhi, say police; they are ready to pull the trigger for as low as Rs 40,000.

A mother of seven, a science graduate, a property dealer and a man looking for a job — the profiles of Delhi’s contract killers are diverse. For as little as Rs 40,000, some of these dreaded murderers for hire can fire a gun or wield a knife.

At least 50 contract killing cases were solved by the Delhi police in 2017. Not all of the accused had previous criminal records — some were first-time offenders with dreams of becoming rich overnight.

Former Delhi commissioner Ved Marwah said that though the phenomenon of professionals taking money to kill is spread across the world. “Contract killers are professionals and are everywhere in the world. But first-timers indulging in such crimes shows degeneration of social values. We have to strengthen the criminal justice system, raise the threshold of social behaviour and maintain higher standards.”

Source:  .hindustantimes.

Contract killings have not been alien to Delhiites but what is startling is the fact that they are no longer executed to simply settle scores in business or political rivalries but have even crept into family issues. 

A senior Gurgaon police official believes that over time contract killers have also become “sophisticated and smart.”

“They are no longer the rustic gangs from UP villages who usually worked under the patronage of some local politician or businessman. With landowners from Delhi’s fringe villages striking gold with the property boom, sufficient money has been pumped into these areas to fulfill the fancy for foreign-made guns. This explains the proliferation of guns in the NCR,” said the official.

Source: DNA

The Madras High Court Bench confirmed life sentence imposed on five contract killers, and speaking through the Division Bench of Justices A. Selvam and T. Mathivanan held :

“However high or wise a person is, when he happens to commit a crime against morality, he would certainly, in a flustered state, leave a mark of vestige. This is the archaism and that is what has happened in this case.” 

Source: the Hindu

Punishment:

The punishment for murder under India’s Penal Code is life imprisonment or death and the person is also liable to a fine.[16] 

Guidance on the application of the death sentence was provided by the Supreme Court of India in Jagmohan Singh v. State of Uttar Pradesh, where the Court enunciated an approach of balancing mitigating and aggravating factors of the crime when deciding on the imposition of capital punishment.[17]  However, this approach was called into question first in Bachan Singh v. State of Punjab where the Court emphasized that since an amendment was made to India’s Code of Criminal Procedure, the rule has changed so that “the offence of murder shall be punished with the sentence of life imprisonment.  The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.”[18]  The Court also emphasized that due consideration should not only be given to the circumstances of the crime but to the criminal also.[19] 

However, more recently the Court in Sangeet & Anr. v. State of Haryana, noted that the approach in Bachan has not been fully adopted subsequently,[20] that “primacy still seems to be given to the nature of the crime,” and that the “circumstances of the criminal, referred to in Bachan Singh appear to have taken a bit of a back seat in the sentencing process.”[21] The Court in Sangeet concluded as follows:

This Court has not endorsed the approach of aggravating and mitigating circumstances in [the 1971 case of] Bachan Singh.  However, this approach has been adopted in several decisions.  This needs a fresh look.  In any event, there is little or no uniformity in the application of this approach.

Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal.  A balance sheet cannot be drawn up for comparing the two.  The considerations for both are distinct and unrelated.  The use of the mantra of aggravating and mitigating circumstances needs a review.

In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.

The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.

The grant of remissions is statutory.  However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute.  These need to be faithfully enforced.[22]

Source: https://www.loc.gov/law/help/sentencing-guidelines/india.php

After looking at the judgments of various cases, in my opinion, section 307 IPC is very confusing in so far as the basis of the conviction of accused is concerned. There is a common ingredient which is required for the conviction under this section and that element is intention along with the knowledge and the implication of the act done. All the courts across the board agree on the fact that the intention to commit murder and the preparation for the act must be present. However the element where the courts differ with each other is the matter of proving the intention.

The difference being that courts say that to prove the intention of the accused, the nature of the injury, the nature of the weapon used, preparation taken are taken into account however surprisingly the courts arrive at different conclusions regarding these facts. That is in some cases the courts have ruled that even if the weapon used was dangerous but caused a simple wound, there would be no conviction under section 307 and in another case the court rules that even if no injury is caused the accused can be convicted if intention to kill is proved. This is contradictory in nature. In one case the court also ruled that forced starvation can also be convicted under section 307.

The questioning of the constitutional validity of this section was a legitimate question which was solved by a very simple answer by the Andhra Pradesh High Court. The main conclusion is that there is no hard and fast rule about the methodology of proving the intention of the accused, that may vary from case to case and it is the judge’s responsibility to take cognizance of the facts before him and decide on the intention of the accused and it is the intention which matters the most in conviction.

The nature of the injuries, weapons used are merely clues that the judiciary uses to reach to a conclusion about the intention of the accused. So it can be safely said that even of no injury is caused a person can be convicted under this section.

Source: https://www.lawctopus.com/academike/attempt-murder-section-307-ipc/

What is the true legal position in the matter of proof of Wills? - Judgment Reading

In the leading case H. Venkatachala Iyengar v B.N. Tkimma-jamma, the Supreme Court has stated the manner and nature of proof required to prove a Will and the solemnity attached to the same which is as follows:

"What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of Law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the Wilt or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained"? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated".

10. Thus the principle that is evolved by the Supreme Court in short is that "where circumstances exist which excite suspicion of the Court, the propounder has to remove such suspicion and prove affirmatively that the testator knew and approved the contents of the documents". But what are suspicious circumstances is difficult to illustrate exhaustively. It depends upon facts of each case. Broadly stated some of the prominent ones indicated by the Court in the said decision being "signature is doubtful, condition of the mind is very feeble and debilitated, the disposition made in the Will is very unnatural, unfair, improbable in the light of relevant circumstances". In a later decision in Smt. Indu Bala and Others v Manindra Chandra Bose and Another, the principles of Venkataehala's case, supra, has been reiterated and some of suspicious circumstances has been illustrated in a little more detail viz., "The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair, in the light of relevant circumstances". The Court has however sounded a word of caution by stating "Needless to say that any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal as is not normally expected in a normal situation or is not expected of a normal person". Again in PPK Gopalan Nambiar v PPK Balakrishnan Nambiar and Others, it has been stated in order that the circumstances can be stated to be suspicious which should be removed by the propounder of the Will, it has stated "It is trite, that it is the duty of the propounder of the Will to prove the Will add remove all suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind".

Thus what emerges from a reading of Section 59 of Indian Succession Act. Sections 67 and 68 of the Evidence Act; and the decisions referred to above is: That when a Will is sought to be probated by the propounder, and is charged or attacked by the caveator, the initial burden is on the propounder of the Will first to prove the Will by establishing that the executor or executrix as the case may be was not a minor, was of sound mind knew the contents and signed the Will in the presence and at least by two witnesses, and at least one of the attesting witness has to be examined as provided under Section 68 of the Evidence Act, and then remove from the mind of Court every circumstance of legitimate suspicion which is found to exist; but the suspicious circumstances must be real, germane to the case, but the approach to the question cannot be in the often quoted passage by the Supreme Court of Lord-da-pareq in Harmes v Hinksan:

"Where a Will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion a resolute and impenetrable incredulity. He is never required to close his mind to truth".

One other important factor that has also to be kept in mind is that Courts should also guard in not over emphasizing circumstances which may look suspicious (though on a closer look it may not be red) which may result in frustrating the 'intention of the testator'.

After the propounder removes the legitimate suspicion circumstances if any then the burden shifts on the person attacking the Will on any grounds viz., fraud, undue influence, coercion, mistake etc., which burden he has to discharge by proper plea and proof.

Source: Karnataka High Court in Krishnabai vs Maheshwar on 10 December, 1998

Equivalent citations: ILR 1999 KAR 1038, 1999 (6) KarLJ 357Bench: Justice H Rangavittalachar

Of judges and their philosophies - From The Frontline

Of judges and their philosophies:

V. VENKATESAN
Interview with Prof. Mohan Gopal, director, Rajiv Gandhi Institute for Contemporary Studies, New Delhi.



PROFESSOR Mohan Gopal, director of the Rajiv Gandhi Institute for Contemporary Studies, (RGICS), New Delhi, is concerned about the implications of the Vodafone judgment for governance. He is well known for his scholarship in constitutional, and his previous tenures, as the head of the National Law School, Bangalore, and the National Judicial Academy, Bhopal, have been inspiring to both students and practitioners of law. Excerpts from an interview he gave Frontline:

What, according to you, are the legal flaws in the Vodafone judgment?

The issue is not whether the judgment is legally flawed. A sound legal argument can be canvassed in support of the two opposing contentions in this case – as is seen in the quite brilliant judgment of Justice Dhananjay Chandrachud in the Bombay High Court on the one hand, and in the erudite, succinct and tightly reasoned judgment of the Chief Justice of India on the other – both excellent judgments although they reach opposite conclusions.

What distinguishes the two judgments is in fact the bona fide differences in judicial approaches of the two judges as individuals, not the state of the law or the facts of the case. Justice Chandrachud's judgment is acutely concerned about judicial deference to the legislature in a democracy. He writes:

“Judicial doctrine which is designedly intended by the Constitution to be isolated from the rough and tumble of democratic accountability to electoral colleges must, therefore, be structured so as not to intrude upon the field of legislative policies which lies within the domain of Parliament.”

Justice Kapadia's judgment takes careful account of the business environment and foreign direct investment needs.

Justice [K.S.] Radhakrishnan, in his concurring judgment, writes, “FDI… is indispensable for growing economy like India [ sic]”.

The fact of the matter, well recognised in the jurisprudential school called legal realism, is that the individual approach of the judge is even more decisive in judicial decisions than the law or the facts.

What would have happened if, hypothetically, in this case, Justice Chandrachud had been in the Supreme Court and Justice Kapadia and Justice Radhakrishnan in the High Court? The consequences for the country would have been enormous. We may have been able, for example, to receive billions of dollars of additional tax revenue and bridge a part of the affordability gap for universal coverage in the food security policy.

If this is the case, has not the time now come in India for us also to engage with the issue of the personal approach and philosophy of judges more openly and directly – as other democracies do? How long will we stick to the legal fiction that the personal background and the social, economic and political philosophies of judges do not enter their judicial decision-making?

Judges should be firmly committed to the values and philosophy of our Constitution (not to the government or party of the day) because they have assumed for themselves the role of guardians of the Constitution.

ATUL YADAV/PTI

CHIEF JUSTICE OF INDIA S.H. Kapadia and (below) Justice Dhananjay Y. Chandrachud of the Bombay High Court.

What is the relevance of the constitutional philosophy to this judgment? I would argue that the Bombay High Court judgment is more in line with the constitutional philosophy than the Supreme Court judgment for two reasons. First, the passage from Chandrachud shows a conscious judicial deference to the legislature, based explicitly on the constitutional vision. Second, the Bombay High Court judgment is more in line with the constitutional scheme of the role of the state as a proactive guardian of the public interest (rather than a state that yields excessively to the market). It provides greater latitude for the state to safeguard public interest in collecting taxes (badly needed for development) by “looking through” rather than merely “looking at” complex financial arrangements in a globalised world in which not only investment and growth but crime and embezzlement are also on the rise.

The Supreme Court judgment, on the other hand, reveals an approach that is concerned about limiting tax investigation and encouraging investment flows into the country.

SHASHI ASHIWAL


Neither judgment, in my view, adequately reflects the constitutional philosophy towards the obligation of citizens and corporates in a poor country to pay taxes to the fullest extent required by law, rather than plan to avoid or evade them.

What are the consequences of the judgment for tax revenue and development?

The Supreme Court judgment places important limitations on the revenue authorities. The “look at/look through” framework is in my view, neither valid nor justifiable, and as the Supreme Court itself suggests, this is a matter of legislative policy. This should be corrected. Equally, the excessively narrow interpretation of the tax nexus with India will also have to be corrected. Unless this is done, the consequences for revenue and development will be negative without any prospect of commensurate growth in investment – except perhaps growth in the number of well-disguised fraudulent tax schemes that will hide coyly behind “look at” limits!

It is pointed out that the principle of recusal is not relevant in this case because the Chief Justice's son, Hoshnar Kapadia, joined Ernst & Young – a firm which advised Vodafone on its tax dispute – after the February 2007 deal, and that he joined E&Y India and not E&Y U.K. It is also pointed out that the Income Tax Department used E&Y U.K.'s report as evidence against Vodafone.

I do not know the facts. From what I have seen in the media, the conflict of interest argument seems far-fetched in terms of currently accepted judicial standards for recusal. Chief Justice Kapadia has a well-deserved and hard-earned reputation for the highest integrity. We should avoid raising questions about the integrity of public officials so lightly.

The judges seem to have reached the decision by their curious interpretation of the McDowell judgment (Para 64). Is their interpretation of the McDowell judgment, especially Justice O. Chinnappa Reddy's observations on the need to depart from the “Westminster” principle, correct?

I am not persuaded by the Supreme Court's interpretation of McDowell in this case. In my view, Justice Chinnappa Reddy and the majority were equally clear in their decision to depart from the Westminster principle, and the Vodafone judgment erred in not following Justice Chinnappa Reddy's holding in this regard.

Did the Bench miss the subtle distinction between tax planning and tax avoidance and tax avoidance and tax evasion?

Not all tax planning is bona fide. I hope the judgment will not be read as giving a green signal to all tax planning even if the plan is to evade or avoid taxes.

As a matter of political philosophy derived from Gandhian values that underlie our Constitution, I would argue that tax reduction, avoidance and evasion should all be considered illegitimate. The purpose of the Constitution and the state it constitutes is to bring about a social revolution to bring swaraj to the masses. This has been well recognised, including by the Supreme Court of India (see for example the judgment in the S.P. Gupta case). The state has inadequate resources to improve the lot of the poorest, as we are repeatedly told. If this is the case, the policy of the state and the duty of corporates must be to collect, and to contribute, as much tax as possible under the law. Business transactions must be designed to achieve business goals. Tax avoidance, evasion or reduction may be a relevant business goal in rich countries, but not in India. This vision should guide Indian courts. The blind adoption by courts of British tax jurisprudence in this regard without due consideration of the differences in the role and need for taxes in a poor country such as India, and our constitutional values, is unfortunate.

Narrow interpretation

The exclusion of “indirect transfers” from Section 9 of the Income Tax Act and, as a consequence, the refusal to consider it as a “look through” provision was another setback to the I.T. Department. Was the Supreme Court correct in interpreting Section 9 in the manner that it did?

The excessively narrow interpretation of Section 9 is not in my view adequately justified in the judgment. There was no intention on the part of the legislature to exclude indirect transfers. It is not clear how this provision was in effect “read down”. This matter may need to be corrected legislatively.

In Paragraph 73, the Bench seeks to distinguish between preordained transaction (created for tax avoidance purposes) and a transaction which evidences investment to participate. In the latter, a dissecting approach is not warranted. Is the Bench correct in its emphasis on the “look at” approach rather than on the dissecting approach?

It is not clear how the tax authorities would be able to determine whether a transaction is intended for tax avoidance or evasion or for investment to participate unless the transaction is first “looked through” carefully and “dissected”. The Supreme Court judgment itself appears to “dissect” the impugned transaction in some detail, rather than merely “look at” it, before concluding that it was not intended for tax avoidance. After the dissection, the judgment seems to suggest that the transaction should be analysed “as a whole” rather than its individual elements looked at in isolation.

Again, if individual elements clearly show a plan for tax evasion, it is not clear how they can be ignored by the tax authorities. These distinctions appear interesting from a theoretical point of view, but may be very difficult to apply.

Do you think ‘Azadi' was incorrectly decided?

In the relevant part of the Azadi judgment the Supreme Court overturned a Delhi High Court judgment that [to use the Vodafone terminology] upheld a “look through” approach and struck down a “look at” approach that was mandated by an impugned circular. In so doing, the Supreme Court limited the role of the tax authorities, who have duties and responsibilities to investigate the true nature of transactions. However, in that case, the “look at” limit came from the executive itself in the form of the impugned circular, rather than from the judiciary. As a result, the Supreme Court cannot be faulted in the Azadi case for upholding a policy choice – erroneous as it may have been – made by the executive.

The “look at”/“look through” distinction should be removed and the tax authorities should be fully empowered to investigate transactions as needed (with adequate safeguards against harassment and corruption).

Justice Radhakrishnan has held in paragraph 90 of his judgment that the principle of Duke of Westminster is still valid. Your comments.

The concurring judgment does not quite say that the Westminster case is still valid. It simply says, in effect, that it is not fully dead. So we may conclude that the “Duke of Westminster” case is in a deep coma and hence not of any functional relevance.

In any case, the time has come, 65 years after Independence, for us to develop the confidence to decide our tax cases without relying on whether or not old English decisions are dead, alive or in a coma.

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