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TMI Blog2010 (7) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; and spirit of provisions of Order XXX111 of the Civil Procedure Code, we should not deny her justice only on the ground of her inability to pay the appeal fees. According to her calculations, she is required to pay appeal fees of Rs 25,269 (though the correct amount for the present six appeals, in our understanding, works out to Rs 7,510). When it was put to her that the Tribunal does not have any specific powers to grant exemption from payment of appeal fees, she invited our attention to the judgments of Hon'ble Supreme Court in the case of A A Hajarnuniddin Vs Indian Railways (AIR 1993 SC 361), and of Hon'ble Bombay High Court in the case of Raj Kumar Vs Debt Recovery Tribunal [ II (2004) BC 485], in support of the proposition that underlying principles of the Code of Civil Procedure cannot be ignored by any Tribunal, including the Income Tax Appellate Tribunal. She submits that once Hon'ble Courts hold that the provision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Commissioner, travelling well beyond the scope and call of our duty and powers. Learned Commissioner very politely but firmly submits that we must restrict ourselves to interpreting the law as it exists and refrain from venturing to interpret the law as it ought to be. It is also important to bear in mind the fact, according to the learned Commissioner, that the powers of Hon'ble High Courts and Hon'ble Supreme Court are indeed much wider and extend to even examining the validity of, and reasonable of, legislation on the touchstone of principles embedded in the Constitution of India. We are thus urged to refrain from taking too aggressive a view of our powers and remain confined to the provisions of the Income Tax Act. It is also pointed out that, in any event and even on merits, it is not a fit case for exempting the appellant from payment of appeal fees. The provisions of Order XXXIII of the Civil Procedure Code, as it appears from a cursory reading of the said provision, are meant to help out a destitute or pauper, and not to elite professionals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat she is well off. She further submits that the case against her is wholly frivolous and she cannot be subjected to undue hardship to pay fees to defend this frivolous case. She urges us to examine the merits of the case and then take the call whether or not this is a fit case for exemption from payment of appeal filing fees... 6. We have considered the rival submissions, perused the material on record and duly considered factual matrix of the case as also the applicable legal position. 7. A plain reading of Order XXXIII of the Civil Procedure Code indicates that the said provision is essentially to safeguard the interests of indigent persons who do not have the means to pay for fees to seek legal remedies available to them. When these provisions are successfully invoked, the successful petitioner is not be liable to pay any court-fee, or fees payable for service of process, in respect of any petition, appointment of a pleader or other proceeding connected with the litigation. The noble objectives of this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly. As for the second category, we have noted that the total fees payable by the assessee, for all these six appeals, is Rs 7,510, and the assessee, a lawyer in practice, can be declared to be an indigent person only when it is found that the means she is possessed of "are not sufficient to enable her to pay fees prescribed by law". At least two of these appeals involved as little a fee as Rs 500 each, while three other involved appeal fee of Rs 1,500 each, and one appeal involved a fees of Rs 2,010. Even by assessee's admission, the assessee had means to pay for these six appeals, but yet the assessee has invoked the provisions, which are meant for destitute, to shirk her responsibility. There is no dispute at all that the assessee appellant is in practice before Bombay High Court, Debt Recovery Tribunal and lower Courts. As a matter of fact, these appeals, which were originally filed before the Nagpur bench of this Tribunal, were transferred to Mumbai benches, inter alia, on the ground that due to assessee's preoccupation with professional work in Mumbai, it is not possible for her to attend to the proceedings before the Tribunal in Nagpur. During the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the applicant to the effect that he is indigent person. It is not that mere making of a claim of indigent person would be sufficient to discharge the assessee appellant of his burden to pay fees. The claim for being covered by the protection available for indigent persons must be decided in the light of the criterion laid down by Explanation 1 to Rule 1 of Order XXXIII. As we have seen in the foregoing discussions, the assessee fails on the two tests laid down therein. The assessee thus clearly does not fit the criterion of being an indigent person. The case made out by the assessee is frivolous and devoid of any merits. In our view, a plain look at the basic facts of the case unambiguously demonstrates that the assessee is not an indigent person, and there is no need to address ourselves to the question as to whether or not Order XXXI11 of Civil Procedure Code will have application in the matter. Given the above factual matrix, it is a wholly academic question as to whether or not this Tribunal has the powers to grant exempti ..... 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