Over 2 lakh Indian cases. Search powered by Google!

Case Details

KHUSHBASH SINGH SANDHU versus UNION OF INDIA & ORS.

High Court of Punjab and Haryana, Chandigarh

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Khushbash Singh Sandhu v. Union of India & Ors. - CWP-19870-2004 [2006] RD-P&H 4288 (18 July 2006)

C.W.P.No.19870 of 2004 [1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.W.P.No.19870 of 2004

Date of decision: July 20 , 2006

Khushbash Singh Sandhu v. Union of India and others.

Present: Mr.R.P.Sawhney, Senior Advocate with Mr.B.B.Kaushik, Advocate for the petitioner.

Mr.S.K.Garg Narwana, Advocate for the respondents.

CORAM:
Hon'ble Mr.Justice Adarsh Kumar Goel

Hon'ble Mr. Justice Rajesh Bindal

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest? ORDER:

The petitioner has filed the present writ petition in this Court challenging orders dated 2.8.2004 and 3.3.2004 passed by the Commissioner of Income-tax (Appeals), Chandigarh [for short, `the CIT(A)'] and Income-tax Officer, Ward No.5(3), Chandigarh respectively. Besides this, vires of Note 2 contained in Form 36 providing for payment of fee for filing of appeal before the Income-tax Appellate Tribunal (for short, `the Tribunal') are also under challenge.

As far as the vires of Note 2 in Form 36, providing for filing of appeal before the Tribunal, which required for payment of fee along with the memorandum of appeal is concerned, learned counsel for the petitioner contended that the fee prescribed is quite exorbitant. The petitioner is a retired serviceman and in case he is not able to deposit the fee, his remedy of appeal would become meaningless. Another contention raised is that this is violative of Articles 14 and 19 of the Constitution of India.

How prescription of fee is violative of Article 19 of the Constitution could not be substantiated because, admittedly, the petitioner is not engaged in any kind of business.

C.W.P.No.19870 of 2004 [2]

The pleadings of the petitioner, as far as challenge to the fee provided for filing of appeal before the Tribunal is concerned, are extracted below: "(h) That even the provisions of fee to be deposited for filing the appeal as contained in Note-2 of Form-36 is unconstitutional, being violative of Article 14 and 19 of the Constitution, being unreasonable, inasmuch as the same is highly excessive and confiscatory. Fee was Rs. 250/- and Rs. 500/- which has been raised to Rs. 500/- and Rs. 1500/- and 1% of the amount of assessed income or Rs. 10,000/-. This is highly unreasonable inasmuch as that a person like the petitioner whose income has been assessed arbitrarily by the I.T.O. will have no right to file an appeal unless he is able to arrange payment of fee. There being no provision for dispensation of this condition, even in deserving case, such as that of petitioner, the impugned note which is in the nature of rule appended in form 36 is highly unreasonable and hence violative of Article 14 and 19 of the Constitution of India."

The contention of learned counsel for the petitioner is that the petitioner, being a retired serviceman, will not be able to pay the fee of Rs.4,425/- for filing of appeal before the Tribunal in addition to Rs. 500/-, provided as fee for filing stay application. It is evident that the petitioner is incorrect in providing the figure. From the pleadings in the writ petition, it is evident that the petitioner had filed his return of income for the year in question declaring his income at Rs.77,530/-. While framing the assessment, an addition of Rs. 3,65,000/- was made therein and accordingly, the income was assessed at Rs. 4,42,530/-. To say that the entire income assessed by the Assessing Officer is disputed would be wrong as it is only the addition made by the Assessing Officer to the extent of Rs.3,65,000/-, which is disputed. The court fee on that amount would be Rs. 3650/- and not Rs. 4,425/-, as stated by the petitioner.

The issue with regard to validity of ad valorem court fee provided for in Rajasthan Court-fees and Suits Valuation Act, 1961 and Karnataka Court-fees and Suits Valuation Act, 1958 came up for consideration before the Hon'ble C.W.P.No.19870 of 2004 [3]

Supreme Court in P.M.Ashwathanarayana Setty and others v. State of Karnataka and others, AIR 1989 SC 100, wherein while rejecting the challenge, the Apex Court observed that for smaller claims, court fee should be small, whereas for high value claims, it should be high. The same principle is evident in the present case, as for disputes upto Rs. one lac, fee is merely Rs. 500/-; for disputes between Rs.

one lac and Rs. two lacs, fee is Rs. 1,500/- and for disputes above Rs. two lacs, it is provided ad valorem at one per cent of the disputed amount, subject to a maximum of Rs. 10,000/-. Providing for such a rate of fee cannot, in any manner, be said to be arbitrary or so exorbitant that a person is unable to pay the same.

Reliance of the petitioner on the price index for the years in question has no relevance with fixation of the court fee.

In view of our above discussion, we do not find any merit in this contention of learned senior counsel and reject the same.

Regarding challenge to the order passed by the CIT(A) in appeal against the order of assessment is concerned, it is not disputed that the petitioner has an effective alternative remedy of appeal before the Tribunal. However, to invoke extra ordinary jurisdiction of this Court, midstream after remedy of first appeal against the order of assessment was availed of by the petitioner, it was submitted that the petitioner had engaged Shri Madan Kumar as Advocate, who had filed the appeal. However, no notice was issued in appeal to him and the appeal was dismissed in default. On a perusal of the order passed in appeal, it was revealed that presence of Shri Rajiv Gupta and Shri Parikhsit Aggarwal, Chartered Accountants has been recorded. The contention of the petitioner is that he never engaged Shri Rajiv Gupta. It is further alleged that no notice in appeal was served either on him or on his counsel, who had filed the appeal.

In response to the petition, the respondents in their written statement have placed on record notice dated 26.5.2004 issued by the CIT(A) to the petitioner fixing the date of hearing as 14.6.2004. In addition to this, letter C.W.P.No.19870 of 2004 [4]

dated 14.6.2004 by Shri Rajiv Gupta, Chartered Accountant has also been placed on record requesting for adjournment in the case. Besides, an affidavit of Shri Rajiv Gupta, CA is on record to state that he was instructed to appear in the appeal filed by the petitioner and on his instructions, he had sought adjournment on 14.6.2004. As in spite of the adjournments got by Shri Rajiv Gupta, the petitioner neither gave him the power of attorney nor the documents, accordingly he did not appear any further, as a consequence the appeal was dismissed.

To controvert these allegations, the petitioner has filed an affidavit stating that he never engaged Shri Rajiv Gupta, Chartered Accountant.

In view of the counter allegations made by the parties, which are strictly in the nature of disputed questions of fact, we do not consider it to be a fit case in which writ court should interfere as the decision of these disputed questions of fact and also the issues of the petition on merits, effective remedy of appeal is available before the Tribunal.

Accordingly, we decline to interfere in the order of assessment or the order passed by the CIT(A) and leave it open to the petitioner to avail alternative remedy of appeal in accordance with law. However, since time to file appeal has expired during the pendency of the appeal before this Court, we direct that in case the petitioner files an appeal within four weeks from the date of this order, the same shall not be dismissed on the ground of limitation only.

The writ petition is disposed of in the manner indicated above.

(Rajesh Bindal)

Judge

(Adarsh Kumar Goel)

Judge

July 20 ,2006

mk


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.