Sri Alluri Srinivasa Raju, Satthenapalli V. The ITO, Ward-2, Amalapuram

ITA 423/VIZ/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 2612 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-12-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 03-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T L PETER
• Section: 263

Judgement Text

ITA 422, 423 & 424/VIZ/2010 A LLURI KRISHNAM RAJU, RAZOLE IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO. 422 /VIZAG/ 20 10 ASSESSMENT YEAR : 2007 - 08 SRI ALLURI KRISHNA M RAJU, MLA RAZOLE ITO WARD - 2 AMALAPURAM (APPELLANT) VS. (RESPONDENT) PAN NO.ABXPA 6359G ITA NO.423/VIZAG/2010 ASSESSMENT YEAR : 2007 - 08 SRI ALLURI SRINIVASA RAJU SATTHENAPALLI ITO WARD - 2 AMALAPURAM (APPELLANT) VS. (RESPONDENT) PAN NO. ABWPA 86 72P ITA NO.42 4 /VIZAG/2010 ASSESSMENT YEAR : 2007 - 08 PENMATSA VIJAYA LAKSHMI SATTHENAPALLI ITO WARD - 2 AMALAPURAM (APPELLANT) VS. (RESPONDENT) PAN NO.ALFPP 9228H APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI T.L. PETER, DR ORDER P ER SHRI S.K. YADAV, JUDICIAL MEMBER : - THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE ASSESSING OFFICER PASSED CONSEQUENT TO THE ORDER OF THE CIT PASSED U/S 263 OF THE I.T. ACT. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS CANDIDLY ADMITTED THAT THE RIGHT FORUM TO FILE AN APPEAL AGAINST THE ORDER OF THE ASSESSING OFFICER IS THE CIT(A) AND NOT THE TRIBUNAL. THEREFORE, THE PRESENT APPEALS ARE WRONGLY FILED BEFORE THE TRIBUNAL. HE HAS ALSO MADE A REQUEST TO WITHD RAW THE APPEAL FOR THE ABOVE REASONS. BESIDES, IT WAS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE THESE APPEALS ITA 422, 423 & 424/VIZ/2010 ALLURI KRISHNAM RAJU, RAZOLE 2 ARE TO BE DISMISSED AS WITHDRAWN OR NON - MAINTAINABLE, THE TRIBUNAL FEES DEPOSITED BY THE ASSESSEE MAY KINDLY BE REFUNDED. 2. THE LD. D.R. DID NOT DISPUTE THE FACTUAL ASPECT WITH REGARD TO THE FILING OF THE APPEALS BEFORE A WRONG FORUM. WITH REGARD TO THE REFUND OF TRIBUNAL FEES, THE LD. D.R. HAS CONTENDED THAT ONCE THE TRIBUNAL HAS ENTERTAINED THE ASSESSEE S APPEAL , THE TRIBUNAL FE ES DEPOSITED IS EXHAUSTED AND CANNOT BE REFUNDED. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT THESE APPEALS ARE PREFERRED AGAINST THE ASSESSMENT ORDER PASSED CONSEQUENT TO THE ORDER OF THE CIT PASSED U/S 263 O F THE I.T. ACT. THEREFORE, THE RIGHT FORUM BEFORE WHICH THE ORDER OF THE A.O. CAN BE CHALLENGED IS THE CIT(A) AND NOT THE TRIBUNAL. THEREFORE, THESE APPEALS FILED BY THE ASSESSEES ARE NOT MAINTAINABLE AND WE THEREFORE DISMISS THE SAME. 4. SO FAR AS REFU ND OF TRIBUNAL FEES IS CONCERNED, WE HAVE EXAMINED THE RELEVANT PROVISIONS GIVEN IN TH E OFFICE MANUAL AND WE FIND UNDER CLAUSE 105 RELATING TO REFUND OF FEES PAID, IT IS SPECIFIED THAT THE TRIBUNAL FEES DEPOSITED CAN ONLY BE REFUNDED UNDER THREE CIRCUMSTAN CES WHICH ARE AS UNDER: (I) THE FEE PAID FOR AN APPEAL WHERE IT IS NOT REQUIRED TO BE PAID. (II) WHERE THE ASSESSEE HAS PAID THE REQUISITE FEE WITH THE INTENTION OF FILING AN APPEAL/APPLICATION TO THE TRIBUNAL BUT ULTIMATELY DID NOT DO SO. (III) WHERE TH E ASSESSEE HAS MADE PAYMENT OF FEE TWICE, FEE PAID IN EXCESS IS REFUNDABLE. 5. SINCE THE CASE OF THE ASSESSEE DOES NOT FALL WITH ANY OF THE CLAUSES AFOREMENTIONED, WE ARE OF THE VIEW THAT THE TRIBUNAL FEES DEPOSITED BY THE ASSESSEE CANNOT BE REFUNDED. WE ALSO FIND FORCE IN THE ARGUMENT OF THE DEPARTMENT THAT ONCE THE APPEAL OF THE ASSESSEE IS ENTERTAINED THOUGH DISMISSED FOR CERTAIN REASONS, THE TRIBUNAL FEES CANNOT BE REFUNDED. THE ENTERTAINMENT OF AN APPEAL BY THE TRIBUNAL IS ONLY POSSIBLE WHERE THE ASSESSEE DEPOSITS THE REQUISITE TRIBUNAL FEES , WITHOUT WHICH THE TRIBUNAL HAS NO JURISDICTION TO ENTERTAIN THE APPEAL. THEREFORE, ONCE THE APPEAL IS ENTERTAINED, THE TRIBUNAL FEES PAID BY THE ASSESSEE IS EXHAUSTED AND IT ITA 422, 423 & 424/VIZ/2010 ALLURI KRISHNAM RAJU, RAZOLE 3 CANNOT BE REFUNDED BACK ON ITS DIS MISSAL. WE ACCORDINGLY TURN DOWN THE ASSESSEES REQUEST FOR THE REFUND OF THE TRIBUNAL FEES. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 7.12 .20 10 SD/ - SD/ - (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 7 TH DECEMBER , 20 10 COPY TO 1 SRI ALLURI KRISHNAM RAJU, MLA (RAZOLE), SAKHINETIPALLI, E.G. DIST. 2 SRI ALLURI SRINIVASA RAJU, SAKHINETIPALLI, E. G. DIST. 3 SMT. PENMATSA VIJAYA LAKSHMI, C/O SRI ALLURI KRISHNAM RAJU, MLA (RAZOLE), SAKHINETIPALLI. 4 ITO WARD - 2, AMALAPURAM 3 THE CI T, RAJAHMUNDRY 4 THE CIT (A) , RAJAHMUNDRY 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM