TMI Blog2010 (7) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-2010 - Per Pramod Kumar : 1.During the course of hearing of these appeals, it was noticed that the assessee has not complied with the provisions of section 253(6) of the Income Tax Act, 1961, requiring, inter alia, an assessee appellant to pay requisite fees. The assessee has, however, moved a petition urging us to hold that the assessee, being an indigent person, is not required to pay the appeal fees. We are thus required to dispose of this plea at the threshold itself. 2. The assessee before is a lawyer by profession, and she was subjected to a search and seizure operation carried out by the income tax authorities. During the course of search, only Rs 10,000 were found in cash. It is in connection with the assessments framed as a result of this search operation that the assessee is pursing the present appeals. 3. The case of the assessee is that she is not in a position to pay the appeal fees, and that, in accordance with the letter 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 fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by the revenue authorities, and it will add to her woes if she is also asked to pay the appeal filing fees in connection with such frivolous cases against her. 4. Learned Commissioner - Departmental Representative, on the other hand, submits that the Tribunal itself is a creature of the Income Tax Act, 1961, and it cannot be open to the Tribunal to question the validity of, or read down the scope of, the very provisions of the Income. Tax Act. In case we venture to do so, we will, according to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his amount to pay the filing fees. She also submits that just because she is a lawyer does not necessarily mean that 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 provision have been aptly explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 hearing before us, she stated that her annual income from profession is Rs 70,000. Whatever be the credibility of this statement, even going by her statement, it is not possible to infer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rion 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 exemption from payment of filing fees to the assessee appellants. There is no occasion and no need to consider that aspect of the matter. In any event, there are significant dissimilarities in scope and coverage of income tax litigation vis-a-vis accident claim litigation or railway claim litigation that Hon'ble Supreme Court had occasions to consider. Unlike the cases of motor accident claims and railway claims, which involve even the most underprivileged section of society, income tax litigation is generally touching the lives of relatively affluent section of society, and there may not be any cases in which persons defined as 'indigent persons' could be i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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