ACIT, Circle-17(1), Hyderabad, Hyderabad V. Deloitte Consulting India Pvt. Ltd., Hyderabad, Hyderabad

ITA 294/HYD/2015

• Counselvise Citation: 29422514 RSA 2015
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 23-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KONDA RAMESH
• Assessee Lawyers: S VENKATESWARLU
• Keywords: Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA.NO.293/HYD/2015 ASSESSMENT YEAR 2010-2011 ACIT, CIRCLE 17(1), HYDERABAD VS. M/S. D.E. SHAW I NDIA SOFTWARE P. LTD., HYDERABAD. PAN AAACD7214J (APPELLANT) (RESPONDENT) ITA.NO.294/HYD/2015 ASSESSMENT YEAR 2010-2011 ACIT, CIRCLE 17(1), HYDERABAD VS. M/S. DELOITTE CONSULTING INDIA P. LTD., HYDERABAD. PAN AABCD0476H (APPELLANT) (RESPONDENT) ITA.NO.289/HYD/2015 ASSESSMENT YEAR 2010-2011 ACIT, CIRCLE 17(1), HYDERABAD VS. M/S. DELOITTE SUPPORT SERVICES INDIA P. LTD., HYDERABAD. PAN AABCD9761D (APPELLANT) (RESPONDENT) ITA.NO.290/HYD/2015 ASSESSMENT YEAR 2010-2011 ACIT, CIRCLE 17(1), HYDERABAD VS. M/S. DELOITTE TAX SERVICES INDIA P. LTD., HYDERABAD. PAN AABCD9771F (APPELLANT) (RESPONDENT) 2 ITA.NOS.293,294,289 & 290/H/2015 M/S. D.E. SHAW INDIA SOFTWARE P. LTD.,& OTHERS HYDERABAD. FOR REVENUE : MR. KONDA RAMESH FOR ASSESSEE : MR. S. VENKATESWARLU DATE OF HEARING : 03.12.201 5 DATE OF PRONOUNCEMENT : 0 3 .12.2015 ORDER PER BENCH : THESE FOUR APPEALS PREFERRED BY THE REVENUE ARE DIRECTED AGAINST THE ORDERS PASSED UNDER SECTIO N 253(2A), OBJECTING TO THE DIRECTIONS ISSUED BY THE DISPUTES RESOLUTION PANEL UNDER SUB-SECTION (5) OF SECTION 1 44C. THE A.O./APPELLANT HEREIN PREFERRED THESE APPEALS W ITHOUT PAYING ANY FEE, AS PROVIDED UNDER SECTION 253(6) OF THE I.T. ACT, 1961. WHEN THIS WAS POINTED OUT AT THE TI ME OF FILING THE APPEALS ITSELF, IN THE ACKNOWLEDGMENT LE TTER, REVENUE HAS NOT TAKEN ANY STEPS TO PAY THE FEES AS REQUIRED UNDER THE STATUTE. THEREFORE, THE CASES WE RE POSTED FOR DISMISSAL I.E., FOR WANT OF RECTIFICATIO N 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 30 TH NOVEMBER, 2015 REQUESTING FOR DIRECTIONS ON THE MATTER. HE ALSO SU BMITTED 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 TH E APPEALS SHOULD NOT BE TREATED AS DEFECTIVE AND SHOU LD BE ADJOURNED TILL PROPER DIRECTIONS ARE RECEIVED. 3 ITA.NOS.293,294,289 & 290/H/2015 M/S. D.E. SHAW INDIA SOFTWARE P. LTD.,& OTHERS HYDERABAD. 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 A NY APPEAL, UNLESS STATUTORY CONDITIONS PRESCRIBED THER EIN ARE FULFILLED. IN OTHERWORDS, WHEREVER THE LEGISLATURE INTENDED TO EXEMPT THE REVENUE FROM PAYMENT OF INSTITUTION F EES, 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 FO R PAYMENT OF INSTITUTION FEE, IN THE PROVISO APPENDED TO SUB-CLAUSE (6), THE LEGISLATURE HAS LIMITED THE EXE MPTION FROM PAYMENT OF FEES ONLY WITH REGARD TO THE APPEAL S PREFERRED UNDER SUB-SECTION (2) AND THE MEMORANDUM OF CROSS-OBJECTIONS UNDER SUB-SECTION (4) IMPLYING THE REBY THAT WITH REGARD TO APPEALS FILED UNDER SUB-CLAUSE (2A) ON SECTION 253 THE INSTITUTION FEES IS PAYABLE, AS OTH ERWISE THE APPEAL NEEDS TO BE TREATED AS INVALID. IN OTHER WORDS, IN RESPECT OF APPEALS PREFERRED BY THE REVENUE UNDE R SECTION 253(2A), THE INSTITUTION FEE IS PAYABLE UND ER SUB- CLAUSE (6) OF SECTION 253 SINCE NO PROVISION IS CRE ATED FOR EXEMPTING THE REVENUE FOR PAYMENT OF INSTITUTION FE ES. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE RECORD. FOR THE SAKE OF IMMEDIATE REFERENCE, WE EXTRACT THE PROVISIONS OF S ECTION 253(6) AND THE PROVISO THERETO WHICH CLEARLY HIGHLI GHTS 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 PARTIE S IN 4 ITA.NOS.293,294,289 & 290/H/2015 M/S. D.E. SHAW INDIA SOFTWARE P. LTD.,& OTHERS HYDERABAD. RESPECT OF MEMORANDUM OF CROSS-OBJECTIONS, NO APPEA L 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 TH E 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 5 ITA.NOS.293,294,289 & 290/H/2015 M/S. D.E. SHAW INDIA SOFTWARE P. LTD.,& OTHERS HYDERABAD. CROSS-OBJECTIONS REFERRED TO IN SUB-SECTION (4). (EMPHASIS SUPPLIED). SUB-SECTION (2A) IS CONSPICUOUSLY ABSENT IN THE PRO VISO TO SECTION 253(6) IN WHICH EVENT, THE REVENUE HAS TO P AY 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 ST ATUTORY RIGHT TO FILE AN APPEAL IS PROVIDED UNDER SUB-SECTI ON (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 1 ST 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 INSERTIN G SUB- SECTION (2A) IN SECTION 253, THE LEGISLATURE HAS TA KEN CARE TO INSERT SUB-SECTION (3A) ALSO, WHICH SPECIFIES TH AT THE APPEAL SHALL BE FILED WITHIN 60 DAYS OF THE DATE ON WHICH THE ORDER SOUGHT TO BE APPEALED AGAINST IS PASSED B Y THE A.O. PURSUANT TO THE DIRECTIONS TO THE DRP UNDER SU B- SECTION (5) OF SECTION 144C. NOT ONLY THAT, SUB-SEC TION (4) ALSO WAS AMENDED BY INSERTING SUB-SECTION (2A) IN S UB- SECTION (4) FOR FILING OF CROSS-OBJECTIONS. THIS IN DICATES THAT 6 ITA.NOS.293,294,289 & 290/H/2015 M/S. D.E. SHAW INDIA SOFTWARE P. LTD.,& OTHERS HYDERABAD. THE LEGISLATURE HAS CONSCIOUSLY NOT AMENDED SUB-SEC TION (6). THEREFORE, THE CONTENTION OF THE LD. CIT/DR TH AT 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-SECTI ON (2A), IT CAN BE CONCLUDED THAT THE ASSESSING OFFICE RS APPEAL TO THE APPELLATE TRIBUNAL SHALL BE ACCOMPANI ED 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 RE JECT THE MEMORANDUM OF APPEALS PREFERRED, AS NOT MAINTAINABLE. 4.3. LD. D.R. ALSO POINTED OUT THAT ITAT CAN ACCEP T A MEMORANDUM OF APPEAL BY USING ITS DISCRETION. RUL E-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 T HE PRESENT APPEALS, THE ENCLOSURES ARE NOT DEFECTIVE B UT THE FEE PAYABLE AS PER THE STATUTORY PROVISIONS OF SECT ION 7 ITA.NOS.293,294,289 & 290/H/2015 M/S. D.E. SHAW INDIA SOFTWARE P. LTD.,& OTHERS HYDERABAD. 253(6) WAS NOT PAID. SINCE THE MEMO OF APPEAL IS NO T ACCOMPANIED BY THE FEE, AS PRESCRIBED, WE ARE OF TH E OPINION THAT THERE IS NO DISCRETION TO THE ITAT TO ACCEPT MEMORANDUM OF APPEAL FILED, IN VIOLATION OF THE STA TUTORY PROVISIONS. ITAT BEING A QUASI-JUDICIAL BODY UNDER THE I.T. ACT, IT HAS TO FOLLOW THE STATUTORY PROVISIONS AS P RESCRIBED. UNDER ANALOGOUS CIRCUMSTANCES, WHILE DEALING WITH A N APPEAL FILED BY AN ASSESSEE AGAINST THE ORDER PASSE D UNDER SECTION 271FA, THE ITAT, COCHIN BENCH IN THE CASE OF SUB-REGISTRAR OFFICE, MEPPAYUR VS. DIT (INTELLIG ENCE) (2013) 26 ITR (TRIB.) 341 (COCHIN) OBSERVED THAT TH E TRIBUNAL CANNOT TRAVEL BEYOND THE PROVISIONS OF THE ACT AND CANNOT ADMIT AN APPEAL EVEN IF THE OPPONENT PAR TY GIVES CONSENT PERMITTING THE APPELLANT TO FILE AN A PPEAL. IN OTHERWORDS, THE CONSENT OF A LITIGANT PARTY WOULD N OT CONFER JURISDICTION ON A QUASI JUDICIAL AUTHORITY U NLESS AND UNTIL IT IS OTHERWISE CONFERRED UNDER THE STATU TE. 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. ORDER PRONOUNCED IN THE OPEN COURT ON 03.12.2015. SD/- SD/- (D.MANMOHAN) (B.RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBER HYDERABAD, DATED 03 RD DECEMBER, 2015 VBP/- 8 ITA.NOS.293,294,289 & 290/H/2015 M/S. D.E. SHAW INDIA SOFTWARE P. LTD.,& OTHERS HYDERABAD. COPY TO : 1. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 17(1), 6 TH FLOOR, B-BLOCK, I.T. TOWERS, A.C. GUARDS, HYDERABAD. 2. M/S. D.E. SHAW INDIA SOFTWARE P. LTD., 8 - 2 - 12 - /113, SONALI INFO PARK, ROAD NO.2, BANJARA HILLS, HYDERABAD. 3. M/S. DELOITTE CONSULTING INDIA P. LTD., RMZ FUTURA, BLOCK-B, 4 TH FLOOR, PLOT NO. 14 & 15, DELOITTE DRIVE, ROAD NO.2, HITECH CITY LAYOUT, MADHAPUR, HYDERABAD 500 081. 4. M/S. DELOITTE SUPPORT SERVICES INDIA P. LT D., RMZ FUTURA, BLOCK-A, 2 ND FLOOR, HITECH CITY LAYOUT, MADHAPUR, HYDERABAD 500 081. 5. M/S. DELOITTE TAX SERVICES INDIA P. LTD., RMZ FUTURA, BLOCK-A, 2 ND FLOOR, HITECH CITY LAYOUT, MADHAPUR, HYDERABAD 500 081. 6. DISPUTES RESOLUTION PANEL, 2 ND FL OOR, I.T. TOWERS, 10 - 2 - 3, A.C. GUARDS, HYDERABAD 500 004. 7. CIT(A) - 11/MEMBER - DRP, HYDERABAD. 8. CIT (T.P.), CHENNAI, MEMBER, DRP, HYDERABAD. 9. CIT - 3/MEMBER - DRP, HYDERABAD. 10. COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, I.T. TOWERS, 10-2-3, A.C. GUARDS, HYDERABAD- 500004. 11. D.R. ITAT A BENCH, HYDERABAD. 12. GUARD FILE