M/s Modern Construction Co., Kaithal V. ITO, Kaithal

ITA 1093/CHANDI/2011

• Counselvise Citation: 109321514 RSA 2011
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-03-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 11-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJEET SINGH
• Assessee Lawyers: RAJEEV SHARMA
• Section: 263; 154; 139; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B, CHANDIGARH BEFORE MS SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 1093 /CHD/2011 ASSESSMENT YEAR: 2005-06 MODERN CONSTRUCTION CO V I.T.O 1145/11 WARD 4 PROFESSOR COLONY KAITHAL KAITHAL PAN: AAJFM 1115 F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJEEV SHARMA RESPONDENT BY: SHRI MANJEET SINGH DATE OF HEARING: 15.3.2012 DATE OF PRONOUNCEMENT: 18.04.2012 ORDER PER SUSHMA CHOWLA, JM THE APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A), KARNAL DATED 17.8.2011 RELATING TO ASSESSMENT YEAR 2005-06 AGAINST THE ORDER PASSED UNDER SECTION 154 OF THE I.T. ACT, 1961. 2. THE PRESENT APPEAL WAS FILED BY THE ASSESSEE ON 11.11.2011 AGAINST THE ORDER PASSED U/S 154 OF THE IT ACT. THE REGIST RY ISSUED DEFECT NOTICE TO THE ASSESSEE IN RELATION TO THE TRIBUNAL FEE BEI NG SHORT BY RS. 9500/-. THE APPEAL WAS LISTED FOR HEARING ON 10.1.2012. TH E ASSESSEE FILED A LETTER ON 14.11.2011 IN RESPONSE TO THE DEFECT MEMO ISSUED IN THE CASE POINTING OUT THAT THE PRESENT APPEAL WAS FILED ALON G WITH CHALLAN OF RS. 500/-. THE ASSESSEE POINTED OUT THAT THE QUANTUM A PPEAL WAS FILED IN ITA NO. 283/CHD/2009 WHEREIN THE ASSESSEE HAD DEPOSITED THE REQUISITE FEE OF RS. 10,000/-. AS PER THE ASSESSEE IN THE APPEAL AG AINST RECTIFICATION U/S 154, THE APPEAL FEE OF RS. 500/- IS TO BE PAID U/S 253(6)(D) OF IT ACT. ON THE LISTED DATE OF HEARING THE ASSESSEE WAS DIRECTE D TO REMOVE THE DEFECT. ANOTHER OPPORTUNITY WAS ALLOWED ON 13.2.2012. THE LD AR FOR THE 2 ASSESSEE PLACED RELIANCE ON THE RATIO LAID DOWN IN RAJAKAMAL POLYMERS P. LTD. V. CIT, 291 ITR 314 (KAR). THE PLEA OF THE LD AR FOR THE ASSESSEE WAS THAT ONLY SUM OF RS. 500/- WAS TO BE PAID AS TR IBUNAL FEE. 3. ON PERUSAL OF THE RECORD, WE FIND THAT THE PRESE NT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER U/S 154 OF THE ACT DATED 28.1.2001. THE ISSUE RAISED BY THE ASSESSEE VIDE APPLICATION M OVED U/S 154 OF THE ACT IS IN RELATION TO THE CLAIM OF DEDUCTION OF INTERES T AND SALARY PAID TO THE PARTNER U/S 40(B) OF THE ACT I.E. THE DETERMINATION OF THE INCOME IN THE HANDS OF THE ASSESSEE. THE SAID RELIEF WAS NOT ALL OWED TO THE ASSESSEE BY THE AO AND THE CIT(A) CONFIRMED THE ORDER OF THE AO , AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE PROCEDURE FOR FILING THE APPEAL BEFORE THE T RIBUNAL IS PROVIDED U/S 253 OF IT ACT. THE APPEAL PREFERRED TO THE TRI BUNAL U/S 253(6) OF THE ACT, SHALL BE IN THE PRESCRIBED FORM, SHALL BE VERI FIED IN THE PRESCRIBED MANNER AND IN CASE OF THE APPEAL BEING FILED AFTER IST DAY OF OCTOBER, 1998, IS TO BE ACCOMPANIED BY FEE AS PROVIDED IN SU B CLAUSES (A) TO (D) TO SECTION 253(6) OF THE ACT. THE SAID SUB-SECTION (6 ) OF SECTION 253 OF THE ACT READS AS UNDER: (6) AN APPEAL TO THE APPELLATE TRIBUNAL SHALL BE I N THE PRESCRIBED FORM AND SHALL BE VERIFIED IN THE PRESCRIBED MANNER AND SHALL, IN THE CASE OF AN APPEAL MADE, ON OR AFTER THE IST DAY OF OCTOBER, 1998 IRRESPECTIVE OF THE DATE OF INITIATION OF THE ASSES SMENT PROCEEDINGS RELATING THERETO, BE ACCOMPANIED BY A FEE OF (A) WHERE THE TOTAL INCOME OF THE ASSESSEE AS COMPU TED BY THE AO IN THE CASE TO WHICH THE APPEAL RELATES, IS ONE HUN DRED THOUSAND RUPEES OR LESS, FIVE HUNDRED RUPEES, (B) WHERE THE TOTAL INCOME OF THE ASSESSEE, COMPUTE D AS AFORESAID, IN THE CASE TO WHICH THE APPEAL RELATES TO MORE THAN ONE HUNDRED THOUSAND RUPEES BUT NOT MORE THAN TWO HUNDR ED THOUSAND RUPEES, ONE THOUSAND FIVE HUNDRED RUPEES, (C) WHERE THE TOTAL INCOME OF THE ASSESSEE, COMPUTE D AS AFORESAID, IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN TWO HUNDRED THOUSAND RUPEES, ONE PER CENT OF THE ASSESS ED INCOME, SUBJECT TO A MAXIMUM OF TEN THOUSAND RUPEES, 3 (D) WHERE THE SUBJECT MATTER OF AN APPEAL RELATES T O ANY MATER, OTHER THAN THOSE SPECIFIED IN CLAUSES (A),(B) AND ( C), FIVE HUNDRED RUPEES:} PROVIDED THAT NO SUCH FEE SHALL BE PAYABLE IN THE C ASE OF AN APPEAL REFERRED TO IN SUB-SECTION (2 OR A MEMORANDUM OF CR OSS-OBJECTIONS REFERRED TO IN SUB-SECTION (4). 5. THE SCALE OF FEE PAID ALONG WITH APPEAL FILED BE FORE THE TRIBUNAL IS TO BE DIVIDED INTO TWO PARTS. THE FIRST PORTION BE ING IN RELATION TO THE TOTAL INCOME COMPUTED IN THE HANDS OF THE ASSESSEE AS REFERRED TO IN SUB- CLAUSE (A) TO (C) TO SECTION 253(6) OF THE ACT AND THE SECOND BEING IN OTHER MATTERS AS REFERRED IN TO CLAUSE (D) TO SECTI ON 253(6) OF THE ACT. THE APPEAL RELATING TO THE ASSESSABILITY OF THE INCOME IN THE HANDS OF THE ASSESSEE WHERE THE TOTAL INCOME IS COMPUTED BY THE AO, DEPENDING UPON THE QUANTUM OF INCOME ASSESSED IN THE HANDS OF THE ASSESSEE, THE SCALE VARIES FROM MINIMUM OF RS. 500/- TO MAXIMUM OF RS. 10,000/-. IN APPEAL RELATING TO ANY OTHER MATTER OTHER THAN THOSE SPECI FIED IN CLAUSE (A), (B) AND (C) TO SUB-SEC (6) TO SECTION 253, THE FEE IS R S. 500/-. 6. NOW COMING TO THE SCHEME OF IT ACT, WE FIND THAT THE PROCEDURE FOR ASSESSMENT IS PROVIDED UNDER CHAPTER XIV OF THE ACT I.E. SECTIONS 139 TO SECTION 158 OF IT ACT. FURTHER REVISION BY THE COM MISSIONER IS PROVIDED U/S 263 OF THE ACT AND PENALTIES UNDER DIFFERENT SE CTIONS ARE IMPOSABLE UNDER CHAPTER XXI OF THE IT ACT. IN RESPECT OF TH E APPEAL AGAINST THE ORDER PASSED U/S 263 OF THE ACT OR THE PENALTIES LE VIED UNDER CHAPTER XXI OF THE ACT, THE ISSUE IS DIFFERENT FROM PROCEDURE F OR ASSESSMENT. THE ABOVE SAID DISTINCTION IS BETWEEN THE CHAPTER RELAT ING TO THE PROCEDURE FOR ASSESSMENT AND OTHER ORDERS/PASSED UNDER OTHER PROVISIONS OF THE ACT I.E. THE ORDER OF REVISION PASSED BY THE CIT OR THE PENALTIES IMPOSABLE UNDER CHAPTER XXI OF THE IT ACT. THE INCOME TAX AC T U/S 253(6) HAS RECOGNIZED THE TWO OBJECTS AND HAD PROVIDED FOR DIF FERENT SCALE OF FEES. IN CASES WHERE THE APPEAL IS FILED BY THE ASSESSEE IS AGAINST THE ORDER OF ASSESSMENT/S OF THE AO, THEN THE APPEAL FEE IS TO B E CHARGED AS PER CLAUSES 4 (A) TO (C) TO SECTION 253(6) OF THE ACT AND IN APPE ALS RELATING TO OTHER MATTERS I.E. THE ORDER OF REVISION U/S 263 OF THE A CT OR PENALTIES IMPOSABLE UNDER CHAPTER XXI OF IT ACT, THE TRIBUNAL FEE IS RS . 500/-. 7. WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE PATNA HIGH COURT IN DR AJITH KUMAR PANDEY V. INCOME-TAX APPELLATE TR IBUNAL, 310 ITR 195 (PATNA), WHEREIN IT WAS HELD THAT THE NUMBER OF SUCH CASES WHERE THERE WAS NO NEXUS WITH THE TOTAL INCOME ASSESSED I N THE HANDS OF THE ASSESSEE I.E. THE PENALTIES IMPOSED U/S 271 OF THE ACT, THE FEE TO BE CHARGED IS RS. 500/-. THE HON'BLE HIGH COURT HAS H ELD AS UNDER: THE IMPORTANT WORD USED IN CLAUSES (A), (B) AND (C ) OF SUB-SEC (6) OF SEC 253 ARE TOTAL INCOME OF THE ASSESSEE,. TH EREFORE, THE APPELLANT MUST BE AN ASSESSEE AND THE APPEAL MUST D EMONSTRATE WHAT IS HIS TOTAL INCOME. IN THE CASE OF IMPOSITIO N OF PENALTY THAT MAY NOT BE DISCERNIBLE 8. IN THE FACTS OF THE PRESENT CASE WHERE THE ASSES SEE HAS FILED THE APPEAL AGAINST THE ORDER U/S 154 OF THE ACT I.E.. T HE ORDER OF ASSESSMENT OF INCOME IN THE HANDS OF THE ASSESSEE FOR THE RELE VANT ASSESSMENT YEAR, THE FEE CHARGEABLE IS AS PER CLAUSES (A) TO (C) TO SEC 253(6) OF THE ACT. THE TOTAL INCOME ASSESSED IN THE HANDS OF THE ASSES SEE AS PER THE ORDER PASSED U/S 143(3) OF THE ACT IS RS. 18,29,311/- AND CONSEQUENTLY THE APPEAL FEE OF RS. 10,000/- IS PAYABLE BY THE ASSESS EE ALONG WITH PRESENT APPEAL FILED BY THE ASSESSEE AGAINST ORDER U/S 154 OF THE ACT. THE ASSESSEE HAS ONLY DEPOSITED RS. 500/- AND CONSEQUEN TLY THE PRESENT APPEAL IS NOT MAINTAINABLE BEING DEFECTIVE. 9. THE LD AR FOR THE ASSESSEE PLACED RELIANCE ON TH E RATIO LAID DOWN BY THE KARNATAKA HIGH COURT IN RAJKAMAL POLYMERS P. LT D. V. CIT (SUPRA). THE APPEALS WERE DISMISSED BY CIT(A) IN LIMINE ON T HE GROUND OF DELAY WHEREAS IN THE FACTS OF THE PRESENT CASE, THE ASSES SEE HAS CHALLENGED THE COMPUTATION OF INCOME IN THE HANDS OF THE ASSESSEE BY WAY OF APPLICATION U/S 154 OF THE ACT. WE DISMISS THE APPEAL OF THE A SSESSEE BEING DEFECTIVE. 5 HOWEVER, IN CASE THE ASSESSEE MAKES GOOD THE DEFECT , MAY APPROACH THE TRIBUNAL FOR RESTORATION OF THE APPEAL, IN ACCORDAN CE WITH LAW . 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18TH DAY OF APRIL, 2012. SD/- SD/- (MEHAR SINGH) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18 TH APRIL, 2012 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR