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Assisstant Commissioner of Income-tax, Circle -17(1), Hyderabad v/s D.E. Shaw India Software (P.) Ltd.


Company & Directors' Information:- R S SOFTWARE (INDIA) LTD. [Active] CIN = L72200WB1987PLC043375

Company & Directors' Information:- D. E. SHAW INDIA PRIVATE LIMITED [Active] CIN = U72200TG1996PTC025388

Company & Directors' Information:- C K SOFTWARE PRIVATE LIMITED [Active] CIN = U72501DL2000PTC106184

Company & Directors' Information:- K K SOFTWARE PRIVATE LIMITED [Active] CIN = U72900DL2009PTC193030

Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- A K C SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC128462

Company & Directors' Information:- M C SHAW PVT LTD. [Active] CIN = U51228WB1989PTC046980

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- P AND P SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057212

Company & Directors' Information:- SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72200GJ1995PTC025791

Company & Directors' Information:- N. D. SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TG1998PTC029778

Company & Directors' Information:- T AND H SOFTWARE PRIVATE LIMITED [Active] CIN = U72200UP2000PTC025638

Company & Directors' Information:- M S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC133997

Company & Directors' Information:- G A S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC127546

Company & Directors' Information:- B B SOFTWARE LTD [Strike Off] CIN = L30009WB1995PLC072361

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- H K SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200WB2001PTC093967

Company & Directors' Information:- J SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TZ2000PTC009229

Company & Directors' Information:- K S M SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC128463

Company & Directors' Information:- R B SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC140322

Company & Directors' Information:- SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72200RJ1995PTC010577

Company & Directors' Information:- P P DE & CO PVT LTD [Strike Off] CIN = U52300WB1994PTC010884

Company & Directors' Information:- R J SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC133815

Company & Directors' Information:- I & I SOFTWARE INDIA PRIVATE LIMITED [Strike Off] CIN = U72200TN2005PTC056262

Company & Directors' Information:- D F SOFTWARE INDIA PRIVATE LIMITED [Strike Off] CIN = U72200TZ2003PTC010629

Company & Directors' Information:- E. C. SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72900TN2007PTC063486

Company & Directors' Information:- Q 3 INDIA SOFTWARE PRIVATE LIMITED [Active] CIN = U72900TN2007PTC065786

Company & Directors' Information:- K Y SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC136072

Company & Directors' Information:- T M I SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200KA2005PTC036299

Company & Directors' Information:- B C L SOFTWARE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U30007MH1999PTC117922

Company & Directors' Information:- M I S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200TN2008PTC068694

Company & Directors' Information:- A. T. SOFTWARE PRIVATE LIMITED [Active] CIN = U72200TG1996PTC023841

Company & Directors' Information:- W C SHAW PVT LTD [Active] CIN = U51909WB1942PTC010901

Company & Directors' Information:- J A K SOFTWARE PVT LTD [Active] CIN = U72200DL2001PTC111929

Company & Directors' Information:- R R SOFTWARE PVT LTD [Under Process of Striking Off] CIN = U72200KL1991PTC006051

Company & Directors' Information:- A M H SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC132410

Company & Directors' Information:- P D A SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900DL2003PTC123465

Company & Directors' Information:- K C SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036923

Company & Directors' Information:- S P DE & CO PVT LTD [Strike Off] CIN = U51433WB1941PTC010598

Company & Directors' Information:- I SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72300MH2012PTC225903

Company & Directors' Information:- V M SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900PN2010PTC136847

Company & Directors' Information:- M L SHAW PVT LTD [Active] CIN = U51909WB1934PTC008071

Company & Directors' Information:- H M SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200HP2011PTC031756

Company & Directors' Information:- S N R SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900DL2012PTC243073

Company & Directors' Information:- C M S SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL2005PTC142352

Company & Directors' Information:- S M I T SOFTWARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL2006PTC144816

Company & Directors' Information:- A D SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200KA2002PTC030722

Company & Directors' Information:- H. A. N. R. E. J SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TG2008PTC062044

Company & Directors' Information:- G & H SHAW PVT LTD [Strike Off] CIN = U27310WB1962PTC025389

Company & Directors' Information:- SHAW & CO. PVT LTD. [Strike Off] CIN = U51909WB1953PTC021086

Company & Directors' Information:- R SHAW AND CO. LTD. [Dissolved] CIN = U99999MH1922PTC001006

    IT Appeal Nos. 289, 290, 293 & 294 (Hyd.) of 2015

    Decided On, 03 December 2015

    At, Income Tax Appellate Tribunal Hyderabad

    By, THE HONOURABLE MR. D. MANMOHAN
    By, VICE PRESIDENT & THE HONOURABLE MR. B. RAMAKOTAIAH
    By, ACCOUNTANT MEMBER

    For the Appellant: Konda Ramesh, Advocate. For the Respondent: S. Venkateswarlu, Advocate.



Judgment Text

Per Bench

1. These four appeals preferred by the Revenue are directed against the orders passed under section 253(2A), objecting to the directions issued by the Disputes Resolution Panel under sub-section (5) of section 144C. The A.O./appellant herein preferred these appeals without paying any fee, as provided under section 253(6) of the I.T. Act, 1961. When this was pointed out at the time of filing the appeals itself, in the acknowledgment letter, Revenue has not taken any steps to pay the fees as required under the statute. Therefore, the cases were posted for dismissal i.e., for want of rectification of defects.

2. The Ld. CIT(DR) informed that the matter was taken-up with the Principal Chief Commissioner and placed on record his letter dated 30th November, 2015 requesting for directions on the matter. He also submitted that there could be a mistake in not exempting the appeals under section 253(2A) and hence department has taken-up the issue with CBDT. It was prayed that the appeals should not be treated as defective and should be adjourned till proper directions are received.

3. On the other hand Ld. Counsel, appearing on behalf of the assessee, submitted that the Tribunal being a creature of statute, has no discretion to admit any appeal, unless statutory conditions prescribed therein are fulfilled. In otherwords, wherever the legislature intended to exempt the Revenue from payment of institution fees, it was specified in express words, but with regard to the appeals filed against the orders passed pursuant to the directions issued by DRP, though 253(6) provides for payment of institution fee, in the proviso appended to sub-clause (6), the legislature has limited the exemption from payment of fees only with regard to the appeals preferred under sub-section (2) and the memorandum of cross-objections under sub-section (4) implying thereby that with regard to appeals filed under sub-clause (2A) on section 253 the institution fees is payable, as otherwise the appeal needs to be treated as invalid. In otherwords, in respect of appeals preferred by the Revenue under section 253(2A), the institution fee is payable under sub- clause (6) of Section 253 since no provision is created for exempting the Revenue for payment of institution fees.

4. We have carefully considered the rival contentions and perused the record. For the sake of immediate reference, we extract the provisions of section 253(6) and the proviso thereto which clearly highlights that the legislature intended to exempt the Revenue from payment of institution fees only with regard to the appeals referred to in sub-section (2). For both the parties in respect of memorandum of cross-objections, no appeal fees is payable.

"Section 253(6) :

"(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made on or after the 1st day of June, 1992, irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of,-

(a) Where the total income of the assessee as computed by the Assessing Officer in the case to which the appeal relates is one hundred thousand rupees or less, five hundred rupees;

(b) Where total income of the assessee computed as aforesaid in the case to which the appeal relates is more than one hundred thousand rupees, but not more than two hundred thousand rupees, one thousand five hundred rupees.

(c) Where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than two hundred thousand rupees, one per cent of the assessed income, subject to a maximum of ten thousand rupees.

(d) Where the subject matter of an appeal relates to any matter, other than those specified in clauses (a), (b) and (c), five hundred rupees;

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4)". (Emphasis Supplied).

Sub-section (2A) is conspicuously absent in the proviso to section 253(6) in which event, the Revenue has to pay the institution fees in order to file a valid appeal.

4.1 In the instant case, memorandum of appeal is filed pursuant to directions given by the DRP. A statutory right to file an appeal is provided under sub-section (2A) of section 253 which reads as under :

"[(2A)] The Commissioner may, if he objects to any direction issued by the Dispute Resolution Panel under sub-section (5) of section 144C in respect of any objection filed on or after the 1st day of July, 2012, by the assessee under sub- section (2) of section 144C in pursuance of which the Assessing Officer has passed an order completing the assessment or reassessment, direct the Assessing Officer to appeal to the Appellate Tribunal against the order.]"

4.2 This sub-section (2A) was introduced by the Finance Act, 2012 w.e.f. 01.07.2012. While inserting sub- section (2A) in Section 253, the legislature has taken care to insert sub-section (3A) also, which specifies that the appeal shall be filed within 60 days of the date on which the order sought to be appealed against is passed by the A.O. pursuant to the directions to the DRP under sub- section (5) of section 144C. Not only that, sub-section (4) also was amended by inserting sub-section (2A) in sub- section (4) for filing of cross-objections. This indicates that the legislature has consciously not amended sub-section (6). Therefore, the contention of the Ld. CIT/DR that it could be an omission or mistake in not amending the sub-section (6) for the appeals preferred to in sub-section (2A) cannot be accepted. Since the legislature intentionally has not exempted appeals in sub-section (2A), it can be concluded that the Assessing Officer's appeal to the Appellate Tribunal shall be accompanied by a fee as prescribed under clause (a) to (d) of the provisions. As A.O. has not taken any steps to pay the fees, in spite of being intimated to him in the acknowledgment itself, we have no option than to reject the memorandum of appeals preferred, as not maintainable.

4.3 Ld. D.R. also pointed out that ITAT can accept a Memorandum of Appeal by using its discretion. Rule-9 of the Appellate Tribunal Rules, 1963 provides in discretion to the ITAT. Rule 9(3) is as under :

"The Tribunal may in its discretion, accept a Memorandum of Appeal which is not accompanied by all or any of the documents referred to in sub-rule (1)."

4.4 As can be seen from the above, 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 provision

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s 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 v. DIT (Intelligence) (2013) 26 ITR (Trib.) 341 (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. 5. In view of the above, memorandum of appeals filed by the Revenue are hereby rejected as not maintainable. 6. In the result, appeals of the Revenue are dismissed.
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