SMT RUKMINI GARG, Nagpur V. ITO, WARD 2(4), NAGPUR, Nagpur

ITA 145/NAG/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3175 (ITAT-NAGPUR)
• Duration Of Justice: 6 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 02-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MILIND BHUSANI
• Assessee Lawyers: KAPIL BAHARI
• Section: 143(3); 250; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D. T. GARASIA, HONBLE JUDICIAL MEMBER I.T.A. NO .145 / NAG / 12 ASSESSMENT YEAR: 2005 - 2006 SMT. RUKMINI GARG, VS. INCOME TAX OFFICER, C/O LIBERTY CINEMA, WARD - 2(4), SADAR, NAGPUR. NAGPUR. PAN:AILPG3136A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KAPIL BAHARI RESPONDENT BY : SHRI MILIND BHUSANI, CIT, D. R. DATE OF HEARING :12/10/2012 DATE OF PRONOUNCEMENT : 30/11/2012 ORDER PER P. K. BANSAL: THIS APPEAL HAS BEEN FIXED FOR HEARING FOR THE PURPOSE OF DECIDING WHETHER THERE IS SHORTAGE OF FEES PAID BY THE ASSESSEE SO THAT THE APPEAL MAY NOT BE ADMITTED. THE BRIEF FACTS OF THIS APPEAL ARE THAT THE ASSESSEE FILE D AN APPEAL AGAINST THE ORDER OF CIT(A) DATED 26/12/2011. THE ASSESSING OFFICER HAS COMPUTED THE INCOME IN THE ASSESSMENT ORDER PASSED U/S 143(3) AT RS.9,31,288/ - BEING THE LONG TERM CAPITAL GAIN AGAINST WHICH THE ASSESSEE WENT IN APPEAL BEF ORE THE CIT(A). AFTER GIVING EFFECT TO THE ORDER OF CIT(A), THE TOTAL INCOME WAS ASSESSED AT RS.7,14,250/ - . THE ASSESSEE HAS PAID TRIBUNAL FEES NOT AT RS.9,313/ - BEING 1% OF THE INCOME ASSESSED BY THE ASSESSING OFFICER. THE TRIBUNAL FEES IS PAID AT RS.7 ,200/ - BEING 1% OF THE INCOME ASSESSED AFTER GIVING EFFECT TO THE ORDER OF CIT(A). THE REGISTRY OF THE TRIBUNAL ISSUED A I.T.A. NO. 145/NAG/12 2 DEFECT MEMO STATING THEREIN THAT THE FEES HAS BEEN IN SHORT BY RS.2,113/ - . IN REPLY THERETO, THE ASSESSEE, VIDE LETTER DATED 29/05/20 12, SUBMITTED AS UNDER: THE FEES IS PAID ON THE BASIS OF THE INCOME ASSESSED AFTER GIVING EFFECT TO THE ORDER OF THE CIT(A). COPY OF THE ORDER U/S 250 DATED 15/02/2012 IS ANNEXED. IN CASE ANY FURTHER FEES IS NECESSARY PLEASE INFORM US OF THE SAME AND T HE SAME SHALL BE PAID. 2. SUBSEQUENTLY, THE AR (DDO) ON 13/06/2012 PASSED AN ORDER FOR PLACING THE SAID MATTER BEFORE THE HON'BLE BENCH AS AND WHEN THE BENCH FUNCTIONS AT NAGPUR. THE MATTER WAS PLACED BEFORE THE BENCH WHEN THE BENCH WAS ON TOUR AND THE A PPEAL WAS FIXED ONLY FOR THE PURPOSE OF DECIDING THAT WHAT FEES SHOULD BE PAID BY THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE NOTED THAT SECTION 253(6), WHICH DEALS WITH THE PAYMENT OF FEES FOR FILING THE APP EAL BEFORE THE TRIBUNAL, READS AS UNDER: (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 1 ST DAY OF OCTOBER, 1998, IRRESPECTIV E 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 THE 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 HUNDRE D 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 PERCENT OF THE ASSESSED INCOME, SUBJECT TO A MAXIMUM OF TEN THOUSAND RUPEES. I.T.A. NO. 145/NAG/12 3 (D) WHERE THE SU BJECT 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). 3.1 CLAUSE ( A ) OF THIS SUB - SECTION APPLIE S WHERE THE INCOME COMPUTED BY THE ASSESSING OFFICER IS RS.1,00,000/ - OR LESS. CLAUSE ( B ) WILL APPLY WHERE TOTAL INCOME OF THE ASSESSEE COMPUTED BY THE ASSESSING O FFICER IS MORE THAN RS.1,00,000/ - BUT NOT MORE THAN RS.2,00,000/ - . THE CASE OF THE ASSESSEE WILL NOT FALL IN EITHER OF THE SAID SUB - CLAUSE ( A ) OR SUB - CLAUSE ( B ). SUB - CLAUSE ( C ) IS APPLICABLE WHERE THE TOTAL INCOME OF THE ASSESSEE COMPUTED BY THE ASSESSIN G OFFICER IS MORE THAN RS.2,00,000/ - . THE FEES IS TO BE PAID @1% OF THE ASSESSED INCOME. IN THE CASE OF ASSESSEE, THERE IS NO DOUBT THAT THE INCOME COMPUTED BY THE ASSESSING OFFICER IS MORE THAN RS.2,00,000/ - , T HEREFORE, THE TRIBUNAL FEES IS TO BE PAI D @1% OF THE ASSESSED INCOME. NOW THE QUESTION ARISES WHAT DOES THE WORD ASSESSED INCOME MEAN. THE WORD IS NOT INCOME AS IS DETERMINED OR ASSESSED BY THE ASSESSING OFFICER. CHAPTER - XIV OF THE INCOME - TAX DEALS WITH A PROCEDURE FOR ASSESSMENT. U/S 143( 3), THE ASSESSING OFFICER MAKES AN ASSESSMENT DETERMINING THE TOTAL INCOME OR LOSS AND ALSO DETERMINED THE SUM PAYABLE BY THE ASSESSEE ON THE BASIS OF SUCH ASSESSMENT. SIMILARLY, THE ASSESSMENT IS ALSO MADE BY THE ASSESSING OFFICER U/S 144. THE ASSESSMEN T SO MADE U/S 143(3) OR 144 ARE CALLED THE REGULAR ASSESSMENT. AGAINST THE ORDER OF ASSESSMENT PASSED U/S 143(3) OR 144, THE ASSESSEE, IF AGGRIEVED, CAN FILE AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY I.E. THE CIT(A). THE CIT(A) DECIDES THE APPEAL B Y PASSING AN ORDER, THE POWER OF THE CIT(A) IN DISPOSING OF THE APPEAL ARE LAID DOWN U/S 251. ONCE THE CIT(A) DECIDES THE APPEAL OF THE ASSESSEE, THE ASSESSING OFFICER IS BOUND TO GIVE EFFECT TO THE ORDER OF THE CIT(A) AND PASS AN ORDER IN CONSEQUENCE THE REOF. ONCE THE EFFECT OF THE ORDER OF THE CIT(A) IS GIVEN, THE INCOME AS ASSESSED B Y THE ASSESSING OFFICER BY PASSING THE ORDER U/S I.T.A. NO. 145/NAG/12 4 143(3)/144 GETS REVISED AND THAT REVISED INCOME BECOMES THE INCOME ASSESSED U/S 143(3) IN CONSEQUENCE OF AN ORDER PASSED U/ S 250. NOW THE QUESTION ARISES, ONCE THE CIT(A) PASSED AN ORDER AND THE EFFECT OF THE ORDER OF THE CIT(A) IS GIVEN, WHETHER THE INCOME DETERMINED IN THE ASSESSMENT ORDER PASSED U/S 143(3)/144 REMAINS IN EXISTENCE, WHETHER THE INCOME DETERMINED IN THE ORDE R PASSED U/S 143(3)/144 REMAINS TO BE THE INCOME ASSESSED. THE WORDING IN SECTION 253(6)(C) IS ASSESSED INCOME NOT THE INCOME AS WAS ASSESSED ORIGINALLY BY THE ASSESSING OFFICER. ONCE THE ORDER IS PASSED BY CIT(A), IN OUR OPINION, THE ASSESSED INCOME GETS SUBSTITUTED BY THE INCOME AS MAY BE DETERMINED AFTER GIVING EFFECT TO THE ORDER OF CIT(A). THE TRIBUNAL FEES, THEREFORE, IN OUR OPINION, HAS TO BE COMPUTED @1% OF THE ASSESSED INCOME I.E. THE INCOME AS MAY BE DETERMINED AFTER GIVING EFFECT TO THE OR DER OF THE CIT(A). WE, THEREFORE, ARE OF THE VIEW THAT IT IS NOT A CASE WHERE THE ASSESSEE HAS PAID LESS FEES BY RS.2,113/ - . WE ACCORDINGLY DIRECT THE REGISTRY TO ADMIT THE APPEAL AND FIX FOR HEARING BEFORE THE BENCH IN DUE COURSE OF TIME. IN THE RESULT , THE APPEAL DISPOSED OF AS INDICATED ABOVE. ( O RDER PRONOUNCED IN THE OPEN COURT ON 30/11/2012 ) SD/. SD/. ( D. T. GARASIA ) ( P. K. BANSAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30/11/2012 * CL SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR