Rajkumar Kishorilal Chadha, Pune V. ITO, Wd, 8(1), Akurdi, Akurdi

ITA 406/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67110 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 01-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIB JAIN
• Keywords: Capital asset; Additional evidence
• Section: 143(3); 2(14); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.303/PN/2012 (ASSESSMENT YEAR: 2007-08) SHRI MOHINDER M. KOHLI PROP. N.R. ENTERPRISES 108, DR. AMBEDKAR ROAD, DEHU ROAD, PAN : AFRPK3400J . APPELLANT VS. INCOME TAX OFFICER WARD 9 (2), PUNE . RESPONDENT ITA NO.406/PN/2012 (ASSESSMENT YEAR: 2007-08) RAJKUMAR KISHORILAL CHADHA 206, CHADHA MANSION, MUMBAI PUNE ROAD, PIMPRI, PUNE 411 018 PAN : AASPC1483F . APPELLANT VS. INCOME TAX OFFICER WARD 8 (1), AKURDI, PUNE . RESPONDENT ITA NO.407/PN/2012 (ASSESSMENT YEAR: 2007-08) SUNISHKUMAR KRISHANLAL CHADHA 206, CHADHA MANSION, MUMBAI PUNE ROAD, PIMPRI, PUNE 411 018 PAN : AAKPC1842C . APPELLANT VS. INCOME TAX OFFICER WARD 8 (1), AKURDI, PUNE . RESPONDENT APPELLANT BY : MR. SUNIL GANOO RESPONDENT BY : MR. RAJIB JAIN DATE OF HEARING : 08-07-2013 DATE OF PRONOUNCEMENT : 16-07-2013 ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 ORDER PER G. S. PANNU, AM THE CAPTIONED THREE APPEALS RELATE TO THE DIFFEREN T ASSESSEES OF THE SAME FAMILY AND INVOLVE A COMMON ISSUE; THEREFORE, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND ARE BEING DISPOSED-OFF BY WA Y OF A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE THREE ASSESSEES ARE CO-OWNERS OF A PROPERTY WHICH HAS BEEN SOLD DURING THE YEAR UNDER CONSIDERATION AND THE RESULTA NT LONG TERM CAPITAL GAIN (IN SHORT LTCG) ASSESSED BY THE ASSESSING OFFICER WAS FOUND TO BE EXIGIBLE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE ASSESSEES ARE AGGRIEVED W ITH THE ACTION OF THE LOWER AUTHORITIES IN LEVYING PENALTY UNDER SECTION 271(1) (C) OF THE ACT. 3. IN ORDER TO APPRECIATE THE FACTS AND CIRCUMSTANC ES OF THE PRESENT DISPUTE, REFERENCE IS MADE TO ITA NO. 406/PN/2012 I N RAJKUMAR KISHORILAL CHADHA, IS TAKEN AS THE LEAD CASE. THE ASSESSEE ALO NG WITH OTHER TWO ASSESSEES IS CO-OWNER OF A PROPERTY SITUATED AT GHA T NO. 167, VILLAGE- GHAUNJE, TALUKA- MAWAL, DISTRICT- PUNE. THE SAID PR OPERTY WAS SOLD DURING THE YEAR UNDER CONSIDERATION FOR A SUM OF RS.2,23,80,00 0/- OUT OF WHICH ASSESSEE, HOLDING 1/3 RD SHARE, RECEIVED RS.74,60,000/- AS HIS SHARE OF SAL E PROCEEDS. IN THE RETURN OF INCOME ORIGINALLY FILED ON 31.10.2007 ASSESSEE DID NOT DECLARE ANY CAPITAL GAIN ON THE GROUND THAT THE PROPERTY WA S AN AGRICULTURAL LAND WHICH WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF SEC TION 2(14)(III) OF THE ACT. THE SAID RETURN WAS SUBJECT TO A SCRUTINY ASSESSMENT UN DER SECTION 143(3) OF THE ACT ON 26.11.2009 WHEREIN THE SAID POSITION WAS ACC EPTED. SUBSEQUENTLY, IN THE ASSESSMENT OF THE OTHER CO-OWNER OF THE PROPERT Y NAMELY, SHRI MOHINDER M. KOHLI, IT WAS REVEALED THAT THE PROPERTY WAS LOC ATED WITHIN 8 KMS. FROM THE MUNICIPAL LIMITS OF PIMPRI CHINCHWAD MUNICIPAL CORP ORATION (IN SHORT PCMC) ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 AND IT WAS LIABLE TO BE TREATED AS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14)(III) OF THE ACT, AND THE RESULTANT INCOME FRO M SALE OF LAND WAS ASSESSABLE AS LTCG. ACCORDINGLY, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT AND REOPENED THE ASSESSMENT TO ASSESS TH E INCOME WHICH HAD ESCAPED ASSESSMENT. IN THE CONSEQUENTIAL ASSESSMENT FINALIZED UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT DAT ED 29.01.2010 INCOME BY WAY OF LTCG ON SUCH SALE WAS BROUGHT TO TAX AT RS.7 3,86,063/-. SUBSEQUENTLY, THE ASSESSING OFFICER HELD THE ASSESS EE GUILTY OF CONCEALMENT OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) O F THE ACT AND IMPOSED PENALTY OF RS.16,53,000/-. ON AN APPEAL BY THE ASSE SSEE, CIT(A) HAS ALSO UPHELD THE LEVY OF PENALTY VIDE ORDER DATED 23.12.2 011, WHICH IS THE SUBJECT MATTER OF CHALLENGE BEFORE US. 4. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE POINTED OUT THAT THE GAIN ON SALE OF IMPUGNED PROPERTY HAS BEEN HELD EXI GIBLE TO TAX PRIMARILY FOR THE REASON THAT THE PROPERTY WAS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14)(III) OF THE ACT. IT WAS POINTED OUT THAT THE ASSESSING OFFICER BASED THE ASSESSMENT ON THE STRENGTH OF A CERTIFICATE DATED 2 9.12.2009 ISSUED BY THE TALATI VILLAGE GHAUJNE AND ALSO A LETTER ISSUED BY THE ASSISTANT DIRECTOR TOWN PLANNING, PUNE DATED 23.12.2009 STATING THAT THE PR OPERTY WAS LOCATED WITHIN 8 KMS. FROM THE MUNICIPAL LIMITS OF PCMC. THE LEARN ED COUNSEL SUBMITTED THAT THE ASSESSMENT BASED ON THE AFORESAID MATERIAL HAS SINCE BEEN ACCEPTED BY THE ASSESSEE AND NO FURTHER APPEAL HAS BEEN FILED. HOWEVER, THE LEARNED COUNSEL POINTED OUT THAT SUBSEQUENTLY ASSESSEE APPR OACHED THE OFFICE OF TOWN PLANNING DEVELOPMENT, PUNE AND SOUGHT INFORMAT ION UNDER THE RIGHT TO INFORMATION ACT, 2005 AS TO THE BASIS OF STATING TH AT DISTANCE OF IMPUGNED LAND WAS WITHIN 8 KMS. FROM THE MUNICIPAL LIMITS OF PCMC . AT PAGE 3 OF THE PAPER BOOK IS PLACED THE REPLY OF THE TOWN PLANNING & VAL UATION DEPARTMENT, PUNE AND IT IS CONTAINED THEREIN THAT THE INFORMATION FU RNISHED IN ITS EARLIER COMMUNICATION DATED 23.12.2009 WAS BASED ON THE SA NCTIONED REGIONAL ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 DEVELOPMENT PLAN. IN THIS CONTEXT, THE LEARNED COU NSEL POINTED OUT THAT THE POSITION HAS TO BE EXAMINED AS ON THE DATE OF THE N OTIFICATION ISSUED BY THE CBDT NO. 9447 ON 06.01.1994 WHICH PROVIDES FOR THE AREA-LIMITS REFERRED TO IN SECTION 2(14)(III)(B) OF THE ACT. IT IS POINTED OUT THAT ON THE DATE OF SAID NOTIFICATION REFERRED TO IN SECTION 2(14)(III)(B) O F THE ACT, THE LAND IN QUESTION WAS BEYOND 8 KMS. FROM THE MUNICIPAL LIMITS EXISTIN G AT THAT POINT OF TIME AND THAT IT WAS ONLY BY WAY OF A NOTIFICATION DATED 11. 09.1997 ISSUED BY URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF MAHARASHTRA T HAT THE MUNICIPAL LIMITS OF PCMC WERE EXTENDED WHICH BROUGHT THE IMPU GNED LAND WITHIN 8 KMS. OF SUCH EXTENDED MUNICIPAL LIMITS. THE LEARNED COUN SEL HAS POINTED OUT THAT THE LOCATION OF THE LAND IN TERMS OF SECTION 2(14)( III)(B) OF THE ACT WAS TO BE CONSIDERED ON THE DATE OF NOTIFICATION OF THE CBDT DATED 06.01.1994 AND ON THAT BASIS, THE LAND FALLS OUTSIDE THE PURVIEW OF S ECTION 2(14) OF THE ACT THEREBY THE RESULTANT CAPITAL GAIN WAS NOT LIABLE TO BE TAX ED AT ALL. ON THIS BASIS, IT IS SOUGHT TO BE POINTED OUT THAT THOUGHT THE ASSESSMEN T HAS BEEN FINALIZED BY TREATING THE GAIN AS TAXABLE YET HAVING REGARD TO T HE AFORESAID POSITION, THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT B E DELETED. AT THE TIME OF HEARING, THE LEARNED COUNSEL HAS MOVED AN APPLICATI ON FOR AN ADMISSION OF THE FOLLOWING AS ADDITIONAL EVIDENCE, WHICH WAS NOT BEF ORE THE LOWER AUTHORITIES :- (I) COPY OF APPLICATION DATED 31.05.2013 FILED BY T HE APPELLANT- ASSESSEE BEFORE THE PUBLIC RELATION OFFICER TOWN PL ANNING DEPARTMENT, PUNE UNDER R.T.I. ACT, 2005; (II) COPY OF REPLY DATED 19.06.2013 RECEIVED BY THE APPELLANT- ASSESSEE FROM THE ASSISTANT PUBLIC INFORMATION OFFI CER AND TOWN PLANNER, PUNE BRANCH, PUNE IN MARATHI ALONG WITH IT S ROUGH TRANSLATION IN ENGLISH; (III) COPY OF CERTIFIED COPY OF PUNE 10 KM FRIENGE AREA ROAD NET WORK PLAN. ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 A COPY OF NOTIFICATION DATED 11.09.1997 ISSUED BY U RBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF MAHARASHTRA UNDER SECTION 3(3) OF THE BOMBAY PROVINCIAL MUNICIPAL CORPORATION ACT, 1949 HAS ALSO BEEN PLACED ON RECORD. IT IS CONTENDED THAT THE AFORESAID MATERIALS ARE NOTHI NG BUT HISTORICAL FACTS WHICH ARE RELEVANT FOR APPROPRIATE ADJUDICATION OF THE PR ESENT DISPUTE AND ARE LIABLE TO BE ADMITTED. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE APPEARIN G FOR THE REVENUE HAS NOT ASSAILED THE VERACITY OF THE MATERIAL REFER RED BY THE LEARNED AUTHORIZED REPRESENTATIVE, SO, HOWEVER, IT IS POINTED OUT THAT THE AFORESAID POSITION WAS NEVER CANVASSED BY THE ASSESSEE BEFORE THE LOWER AU THORITIES. 6. ON THE AFORESAID PRELIMINARY ISSUE RAISED BY THE ASSESSEE, WE HAVE EXAMINED THE RIVAL POSITIONS. PRESENTLY, WE ARE DEA LING WITH THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT WITH REGARD TO THE LTCG ASSESSED ON SALE OF LAND LOCATED AT VILLAGE- G HAUNJE, TALUKA- MAWAL, DISTRICT- PUNE. THE ORIGINAL PLEA OF THE ASSESSEE A S CONTAINED IN THE RETURN FILED ON 31.10.2007 WAS THAT THE SAID LAND WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14)(III) OF THE ACT, BEING AN AGRICULTURAL LAND FALLING BEYOND 8 KMS. FROM THE MUNICIPAL LIMITS OF PCMC. TH E SAID POSITION WAS ALSO ACCEPTED BY THE ASSESSING OFFICER IN THE ASSESSMENT MADE UNDER SECTION 143(3) OF THE ACT ON 26.11.2009. IT IS ONLY SUBSEQU ENTLY IN THE COURSE OF RE-ASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 1 47/148 OF THE ACT THAT THE ASSESSING OFFICER CAME TO CONCLUDE THAT THE LAND IN QUESTION FELL WITHIN 8 KMS. FROM THE MUNICIPAL LIMITS OF PCMC, WHICH WAS BASED ON A COMMUNICATION FROM THE ASSISTANT DIRECTOR TOWN PLANNING, PUNE DATED 23 .12.2009 AND ALSO A CERTIFICATE DATED 29.12.2009 ISSUED BY TALATI OF VI LLAGE GHAUJNE. ACCORDINGLY, THE CAPITAL GAIN ON SALE OF LAND WAS HELD TO BE TAX ABLE. OSTENSIBLY, THE SAID ASSESSMENT HAS BEEN ACCEPTED BY THE ASSESSEE AND NO APPEAL AGAINST THE SAME HAS BEEN FILED, AS STATED BY THE LEARNED COUNS EL AT THE TIME OF HEARING. ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 HOWEVER, WHILE ASSAILING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON SUCH ASSESSED INCOME, THE ASSESSEE HAS ATTEMPTED TO DEMONSTRATE BEFORE US THAT TAXING OF THE IMPUGNED CAPITAL GAIN IS CONT RARY TO THE PREVAILING LEGAL POSITION. IT IS SOUGHT TO BE MADE OUT THAT THE DIST ANCE OF 8 KMS. FROM THE MUNICIPAL LIMITS IS TO BE RECKONED ON THE DATE OF C BDT NOTIFICATION DATED 06.01.1994 (SUPRA) REFERRED TO IN SECTION 2(14)(III )(B) OF THE ACT, AND AS ON THAT DATE THE LAND WAS BEYOND THE DISTANCE OF 8 KMS., AN D THE MUNICIPAL LIMITS OF PCMC WERE SUBSEQUENTLY EXTENDED IN 1997, WHICH BROU GHT THE IMPUGNED LAND WITHIN A DISTANCE OF 8 KMS. FROM SUCH EXTENDED LIMI TS. IN SUPPORT OF HIS PROPOSITION, LEARNED COUNSEL FOR THE ASSESSEE HAS A LSO REFERRED TO THE DECISION OF THE JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF SMT. (DR.) SUBHA TRIPATHI VS. DCIT, (2013) 34 TAXMANN.COM 286 (JAIPUR) WHEREIN IT IS HELD THAT THE RELEVANT DATE TO EXAMINE THE DISTANCE OF 8 KMS. FROM MUNICIP AL LIMITS FOR THE PURPOSES OF SECTION 2(14)(III)(B) OF THE ACT IS THE DATE OF NOTIFICATION OF CBDT DATED 06.01.1994 (SUPRA). IT IS SUBMITTED THAT HAVING REG ARD TO THE AFORESAID, THE ASSESSMENT MAY HAVE BEEN COMPLETED ON A DIFFERENT B ASIS BUT IF THE CORRECT LEGAL POSITION IS APPLIED, THE ADDITION ITSELF WAS NOT WARRANTED AND THEREFORE, THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS TO FAIL. 7. WE ARE CONSCIOUS THAT THE PRESENT PROCEEDINGS DO NOT RELATE TO THE SUBSTANTIVE TAXATION OF THE IMPUGNED CAPITAL GAIN B UT IT IS A WELL-SETTLED PROPOSITION THAT THE ASSESSMENT PROCEEDINGS AND PEN ALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT ARE INDEPENDENT PROCEE DINGS AND THAT THE CONCLUSIONS ARRIVED AT IN THE ASSESSMENT PROCEEDING S MAY BE GOOD EVIDENCE BUT THE SAME CANNOT BE CONSIDERED AS CONCLUSIVE FOR THE PURPOSE OF EVALUATING LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE AFORESAID PROPOSITION IS SUPPORTED BY THE JUDGEMENT OF THE HO NBLE SUPREME COURT IN THE CASE OF KHODAY ESWARA & SONS 83 ITR 639 (SC). IN CA SE, AN ASSESSEE IN THE COURSE OF PENALTY PROCEEDINGS IS ABLE TO DEMONSTRAT E WITH A FAIR DEGREE OF CERTAINTY THAT THE ADDITION MADE IN THE ASSESSMENT PROCEEDINGS ITSELF WAS NOT ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 WARRANTED THEN THE FINDINGS IN THE ASSESSMENT ORDER CANNOT BE SAID TO BE FINAL SO AS TO FASTEN THE LIABILITY OF PENALTY UNDER SECT ION 271(1)(C) OF THE ACT. IN SUPPORT OF THE AFORESAID PROPOSITION, WE MAY REFER TO THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF JAINARAYAN BABULAL VS. CIT 170 ITR 399 (BOM.). IN VIEW OF THE AFORESAID DISCUSSION, TH E PRELIMINARILY PLEA RAISED BY THE ASSESSEE WHILE ASSAILING THE LEVY OF PENALTY UN DER SECTION 271(1)(C) OF THE ACT DESERVES TO BE ADMITTED AND EXAMINED ON ITS MER ITS. IN SUPPORT OF THE SAID PLEA, THE ADDITIONAL EVIDENCE SOUGHT TO BE PLACED O N RECORD BY THE ASSESSEE, WHICH HAS BEEN DETAILED ABOVE IS ALSO RELEVANT AND DESERVES TO BE ADMITTED. WE HOLD SO. 8. SINCE THE AFORESAID MATERIAL WAS NOT BEFORE THE ASSESSING OFFICER WHILE EVALUATING ASSESSEES CASE FOR LEVY OF PENALTY UNDE R SECTION 271(1)(C) OF THE ACT, IT WAS DEEMED PROPER THAT THE MATTER BE RESTOR ED BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHALL CONSIDER THE FRESH MATE RIAL AND EVIDENCE SOUGHT TO BE RELIED UPON BY THE ASSESSEE AND THEREAFTER AD JUDICATE THE EFFICACY OF THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT QUA THE AMOUNT OF LTCG IN QUESTION. THE AFORESAID ASPECT WAS PUT TO THE PARTI ES IN THE COURSE OF HEARING AND THE RIVAL COUNSELS DID NOT HAVE ANY OBJECTION T O THE MATTER BEING SET-ASIDE TO THE ASSESSING OFFICER FOR RE-EXAMINATION IN THE LIGHT OF THE FRESH PLEA RAISED BY THE ASSESSEE. 9. IN VIEW OF THE AFORESAID DISCUSSION, WE HEREBY S ET-ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF T HE ASSESSING OFFICER WHO SHALL EVALUATE THE LEVY OF PENALTY IN THE CONTEXT O F THE FRESH PLEA RAISED BY THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSING OFFICER SH ALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY TO PUT-FORTH MATERIAL AND SU BMISSIONS IN SUPPORT OF HIS STAND AND ONLY THEREAFTER HE SHALL PASS AN ORDER AF RESH ON THIS ASPECT AS PER LAW. ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 10. IN THE RESULT, APPEAL OF ASSESSEE I.E. ITA NO. 406/PN/2012 IS ALLOWED FOR STATISTICAL PURPOSES. 11. THE OTHER TWO APPEALS IN ITA NO.303/PN/2012 & I TA NO. 407/PN/2012 ARE FOR THE SAME ASSESSMENT YEAR I.E. A.Y. 2007-08 WHEREIN THE ISSUE INVOLVED IS IDENTICAL AND THEREFORE, OUR DECISION I N ITA NO. 406/PN/2012 SHALL APPLY MUTATIS-MUTANDIS IN BOTH APPEALS ALSO. ACCORDINGLY, BOTH APPEALS I. E. ITA NO.303/PN/2012 & ITA NO. 407/PN/2012 ARE HEREBY ALLOWED FOR STATISTICAL PURPOSES. 12. BEFORE PARTING, WE MAY ALSO REFER TO AN APPLICA TION DATED 04.07.2013 MOVED BY THE ASSESSEES WHEREBY PARTIAL REFUND OF AP PEAL FEES PAID HAS BEEN SOUGHT. 13. IN THIS APPLICATION, IT HAS BEEN CONTENDED THAT THE CORRECT APPEAL FEES PAYABLE IS RS.500/- WHEREAS ASSESSEE HAS PAID FEES OF RS.10,000/- AND THEREFORE IT IS PRAYED THAT THE EXCESS FEES PAID BE REFUNDED. IT IS SUBMITTED THAT AS THE APPEAL WAS IN THE MATTER OF PENALTY UNDER SE CTION 271(1)(C) OF THE ACT, THE MATTER OF APPEAL FEES SHALL BE GOVERNED BY SECT ION 253(6)(D) OF THE ACT WHICH PROVIDES FOR AN APPEAL OF FEES OF RS. 500/- O NLY AND IN SUPPORT, RELIANCE HAS BEEN PLACED ON THE JUDGEMENT OF THE HONBLE PAT NA HIGH COURT IN THE CASE OF DR. AJIT KUMAR PANDEY VS. ITAT 310 ITR 195 (PATNA) AND ALSO THAT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF RAJ KAMAL POLYMERS (P) LTD. VS. CIT 291 ITR 314 (KAR.). 14. WE HAVE CONSIDERED THE AFORESAID PLEA AND FIND THAT THE SAME IS SUPPORTED BY THE JUDGEMENT OF THE HONBLE PATNA HIG H COURT IN THE CASE OF DR. AJIT KUMAR PANDE (SUPRA) AND ALSO THE DECISION OF O UR CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF BABULAL DAYABHAI PATEL VS. ITO IN ITA NO. 342/PN/2007 DATED 15.04.2009. FOLLOWING THE SAME, IT IS HELD THAT THE ITA NO.303/PN/2012 ITA NO.406/PN/2012 ITA NO.407/PN/2012 A.Y. 2007-08 APPEAL FEES IN THE PRESENT CASE IS TO BE DETERMINED IN TERMS OF SECTION 253(6)(D) OF THE ACT WHEREIN THE AMOUNT OF APPEAL F EES PRESCRIBED IS RS.500, AND THUS BALANCE OF THE AMOUNT PAID BY THE ASSESSEE IN EXCESS OF THE PRESCRIBED FEES IS LIABLE TO BE REFUNDED. WE HOLD S O. 15. ACCORDINGLY, THE EXCESS FEE PAID BY THE RESPECT IVE ASSESSEES IS DIRECTED TO BE REFUNDED. 16. IN THE RESULT, APPEALS OF THE ASSESSEES ARE TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JULY, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED: 16 TH JULY, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT V, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE