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Taxmen body knocks Supreme Court doors over appeal fees issue

Our Bureau

Mumbai, Oct 10: The All India Federation of Tax Practitioners (AIFTP) has filed a public interest petition in the Supreme Court challenging the fees charged for filing first appeals and enhanced fees for the second appeals.

The petition filed under Section 32 of the constitution states that the object of the said amendments are contrary to the letter and spirit of the constitution of India which ensures easy and quick access to the justice.

It is for the first time that a fee is prescribed for filing first appeal before the first appellate authority i.e the commissioner of income tax (app-eals).

The fees which came into effect from October 1, 1998 have been doubled for various levels of income.

According to the petition, the CIT-(A) is not a first appellate authority in the strict sense and that he is merely another officer of the same department with the powers to correct the arbitrary disallowance or additions made by the assessing officer.

A similar petition has also been filed before the Gujarathigh court by the ITAT Bar Association of Ahmedabad which will come up for hearing next week.

The AIFTP's petition cites an observation made by Raja J Chelliah in his final report that "non-accountability on the part of the assessing officer for over-assessing is the major cause for the huge pendency."

Around 80 per cent of the reference pending before various courts have been filed by the department and 60 per cent of appeals pending before the Income Tax Appellate Tribunal (ITAT) are also from the department, it adds.

The AIFTP has challenged the provisions of sections 50, 52, 58, 69, 76 and 77 of the Finance (no 2) Act, 1998 on the following grounds:

  • The provisions are arbitrary and expropriatary, therefore, violate article 14 of the constitution;

  • The provisions relating to appeals to the CIT-(A) and the ITAT do not provide for awarding refund of fees to the successful assessees and there is no discretion given to the appellate authorities to award costs to the successful appellanttaxpayers;

  • The fees have no correlation with the amount of income or tax in dispute in the appeal but is made relatable to the total income assessed by the assessing officer;

  • The increase in the fees does not have any correlation to the services rendered by the government;

  • The fees are increased only on the assessee while the department is allowed to appeal without paying a single penny;

  • The provisions in substance amounts to depriving the assessee of their right of appeal substantially by levying such exorbitant filing fees only on the assessees with the result that the assessees made by the assessing officer or may be decisions of the first appellate authority who is a senior departmental officer;

  • Neither the government nor the parliament has explained or provided material to justify such exorbitant increase in the filing fees in appeals before the tribunal and the high court as the same has to be relatable and existence of quid pro quo is an essential element in the caseof filing fees or even the court fees are laid down by the several decisions of the Supreme Court;

  • The maximum fee for filing appeals to the central excise and customs tribunal is only Rs 1,000:

  • Fees in the court fall in the state list (list II of the seventh schedule), therefore, are beyond legislative competence of the parliament. The AIFTP has suggested that the fees should be computed on the basis of the assessed income and not on the basis of the income or tax in dispute.

    Copyright © 1998 Indian Express Newspapers (Bombay) Ltd.

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