2015 (12) TMI 1692 - AT - Income Tax

Maintainability of appeal - fee payable as per the statutory provisions of section 253(6) not paid - Held that - If the memorandum of appeal is deficient in its enclosures as prescribed then only the Tribunal can exercise its discretion to accept the memorandum of appeal. In the present appeals the enclosures are not defective but the fee payable as per the statutory provisions of section 253(6) was not paid. Since the Memo of Appeal is not accompanied by the fee as prescribed we are of the opinion that there is no discretion to the ITAT to accept Memorandum of Appeal filed in violation of the statutory provisions. ITAT being a quasi-judicial body under the I.T. Act it has to follow the statutory provisions as prescribed. Under analogous circumstances while dealing with an appeal filed by an assessee against the order passed under section 271FA the ITAT Cochin Bench in the case of Sub-Registrar Office Meppayur vs. DIT (Intelligence) (2014 (1) TMI 102 - ITAT COCHIN) observed that the Tribunal cannot travel beyond the provisions of the Act and cannot admit an appeal even if the opponent party gives consent permitting the appellant to file an appeal. In otherwords the consent of a litigant party would not confer jurisdiction on a quasi judicial authority unless and until it is otherwise conferred under the statute. Memorandum of appeals filed by the Revenue are hereby rejected as not maintainable.

Summary

Issues Involved:
Appeal against orders passed under section 253(2A) objecting to directions by Disputes Resolution Panel under sub-section (5) of section 144C. Payment of institution fees under section 253(6) for appeals filed by Revenue under section 253(2A). Interpretation of statutory provisions regarding exemption from payment of fees for appeals. Discretion of the Appellate Tribunal to accept a Memorandum of Appeal without full documentation.

Analysis:

1. Payment of Institution Fees for Appeals by Revenue under Section 253(2A):
The appeals were filed by the Revenue against orders passed under section 253(2A) objecting to directions by the Disputes Resolution Panel under section 144C(5). The issue arose regarding the payment of institution fees as required under section 253(6) of the Income Tax Act, 1961. The Revenue failed to pay the fees initially, leading to the appeals being considered defective. The Counsel for the Assessee argued that the institution fees are payable for appeals filed under sub-clause (2A) of section 253, as the exemption from payment of fees is limited to appeals under sub-section (2) only. The Tribunal analyzed the legislative intent behind the provisions and concluded that the Revenue must pay the institution fees for appeals under section 253(2A) to file a valid appeal.

2. Interpretation of Statutory Provisions for Exemption from Payment of Fees:
The Tribunal examined the provisions of section 253(6) and the proviso, emphasizing that the exemption from payment of fees is specified for appeals under sub-section (2) only. The absence of sub-section (2A) in the proviso indicated that the Revenue is required to pay institution fees for appeals under section 253(2A). The introduction of sub-section (2A) in 2012, along with related amendments, highlighted the legislative intent not to exempt appeals in sub-section (2A) from payment of fees. The Tribunal rejected the contention that the omission in amending sub-section (6) was a mistake, emphasizing that the statutory provisions must be followed as prescribed.

3. Discretion of the Appellate Tribunal to Accept Memorandum of Appeal:
The Revenue argued that the Appellate Tribunal could exercise discretion to accept a Memorandum of Appeal even if not accompanied by all required documents. However, the Tribunal clarified that while Rule 9 of the Appellate Tribunal Rules allows discretion in certain cases, the fee payment as per section 253(6) is a statutory requirement. The Tribunal held that in the absence of the prescribed fee, there is no discretion to accept the Memorandum of Appeal, as the Tribunal must adhere to the statutory provisions. Citing precedent, the Tribunal emphasized that consent from a party does not confer jurisdiction on a quasi-judicial authority beyond the provisions of the Act.

Conclusion:
The Tribunal rejected the memorandum of appeals filed by the Revenue as not maintainable due to non-payment of institution fees as required under section 253(6) for appeals under section 253(2A). The appeals of the Revenue were dismissed accordingly, emphasizing the necessity to comply with statutory provisions for filing valid appeals before the Appellate Tribunal.