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TMI Blog2002 (1) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... er of a scheduled bank with which the assessee maintains a current account or has other regular dealings; or (iii) any legal practitioner who is entitled to practise in any civil court in India; or (iv) an accountant; or (v) any person who has passed any accountancy examination recognised in this behalf by the Board; or (vi) any person who has acquired such educational qualifications as the Board may prescribe for this purpose; or (via) any person who, before the coming into force of this Act in the Union territory of Dadra and Nagar Haveli, Goa, Daman and Diu, or Pondicherry, attended before an income-tax authority in the said territory on behalf of any assessee otherwise than in the capacity of an employee or relative of that assessee; or (vii) any other person who, immediately before the commencement of this Act, was an income-tax practitioner within the meaning of clause (iv) of sub-section (2) of section 61 of the Indian Income-tax Act, 1922 (11 of 1922), and was actually practising as such. Explanation.--In this section, 'accountant' means a chartered accountant within the meaning of the Chartered Accountants Act, 1949 (38 of 1949), and includes, in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by chartered accountants and income-tax practitioners in income-tax proceedings of Rs. 50 in a single transaction in the circumstances is in accordance with law and is in order." This is under challenge. It is claimed that the original petition has been filed as a representative action. Though in the writ petition reference is made in respect of the fee pattern prevailing when authorisation is prescribed before other statutory functionaries, the submissions in the original petition were confined in respect of the justifiability of exhibit P-2, viz., the stand taken by the income-tax authorities. Writ petitions challenging similar orders on slightly different lines, filed by two other petitioners, viz., one by a chartered accountant in his individual capacity (O.P. No. 28900 of 2000) and another filed by the Kerala Chartered Accountants Association (O.P. No. 6022 of 2001) were also listed along with the above original petition and opportunity was given to hear them as well. The State Government has filed a counter affidavit. On behalf of the Income tax Commissioner, the senior standing counsel Mr. Raveendranatha Menon was heard. According to counsel, Mr. B. K. Thomas, exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree rupees] Authority; (iii) to the High Court; [Five rupees] (iv) to the Government; [Five rupees]" ---------------------------------------------------------------------------- The fee leviable is Rs. 2, and this alone, according to him, should have been chargeable. Counsel made also a passing comment that it was absurd to suggest that depending upon the profession of the person who represented a party, the fee could not change. If so, it would be discriminatory and hit by the vice of article 14 of the Constitution of India. The stamp duty, according to him, is a levy in the nature of tax, which went to the general revenue, and court fee, was a fee which were to go to the head of administration of justice. Mr. Thomas therefore submitted that exhibit P2 was erroneous and power of attorney was a mukhtarnama, and the same presented by an accountant would very well come within article 16 as above, and there was no purpose in drawing a distinction as between accountants and advocates. However, I may observe that the question of any discrimination as to whether it is there, whether it can be there or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 of the Court Fees Act, there were no other charging provision, and no fee was at all leviable on the power of attorney presented. Before going into the contentions of the respondents, we may recapitulate the situation so far presented. There appear to be hurdles, than those which had been posed by exhibit P-2 as well. As could be seen from the pleadings the petitioners had understood about the difficult situation wherein they are placed. The Kerala Court Fees and Suits Valuation Act, 1959, while it declares its applicability, prescribes by section 2(1) as following: "(2) Application of the Act.--(1) The provisions of this Act shall not apply to documents presented or to be presented before an officer serving under the Central Government." The Income-tax Officers were officers serving under the Central Government, and naturally, the application of the Act as far as proceedings before them were to be deemed as excluded from the purview of the Court Fees Act. It was anticipating this that Mr. Thomas had attempted to draw a distinction between a tax and a fee, and relied on the theory behind the Court Fees Act. He could have succeeded only if the position was found acceptable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fee under the law relating to court fees for the time being in force and hence the Kerala Stamp Act is not applicable. Since the Kerala Court Fees and Suits Valuation Act is not applicable to any documents presented or to be presented before an officer under the Central Government, the court fees required in such authorisation has to be nil." have no basis in view of section 3, referred to earlier. The contention cannot be acceptable. As such we may examine article 44 as to whether it has relevance. Mr. Raveendranatha Menon, senior counsel submits that since the provisions of the Court Fees Act are not applicable to documents presented before officers serving under the Central Government, as even admitted by a few of the parties, going by the definition of the term "document" in the General Clauses Act, reliance could well be placed on section 2(p) of the Stamp Act. Any instrument empowering a specified person to act for and in the name of the person executing it, not chargeable with fee under the law relating to the Court Fees Act in force, becomes chargeable thereunder. The key words are "not chargeable with fee", and it is not required to be examined, as to what is the und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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