V.I.Georgekutty, Kollam V. ITO, Kollam

MA 30/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8633 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 31-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 M.A.NOS. 27 TO 35/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO. 27 TO 30/COCH/2012 (ARISING OUT OF I.T.A NOS. 140 TO 143/COCH/2010) (ASSESSMENT YEARS 2003-04, 2004-05, 2005-06 & 2006- 07) SHRI V.I. GEORGEKUTTY VS THE ITO, WD.1 VARROR HOUSE KOLLAM PERUNGALLOR, PO:AYOOR KOLLAM DIST. PAN : AAGPI4993E (APPLICANT) (RESPONDENT) M.A. NO. 31 TO 33/COCH/2012 (ARISING OUT OF I.T.A NOS. 147 TO 149/COCH/2010) (ASSESSMENT YEARS 2004-05, 2005-06 & 2006-07) SHRI ALEX V ISSAC VS THE ITO, WD.1 VARROR HOUSE KOLLAM PERUNGALLOR, PO:AYOOR KOLLAM DIST. PAN : AAJPI4919F (APPLICANT) (RESPONDENT) M.A. NO. 34 & 35/COCH/2012 (ARISING OUT OF I.T.A NOS. 150 & 151/COCH/2010) (ASSESSMENT YEARS 2005-06 & 2006-07) SHRI EBBY ISSAC VS THE ITO, WD.1 VARROR HOUSE KOLLAM PERUNGALLOR, PO:AYOOR KOLLAM DIST. PAN : AAJPE6415C (APPLICANT) (RESPONDENT) 2 M.A.NOS. 27 TO 35/COCH/2012 APPLICANTS BY : SHRI T.M. SREEDHARAN RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 29-06-2012 DATE OF PRONOUNCEMENT : 20-07-2012 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEES FILED THE PRESENT MISCELLANEOUS APPL ICATIONS PRAYING FOR REFUND OF THE EXCESS TRIBUNAL FEE PAID ON APPEALS. 2. SHRI T.M. SREEDHARAN, THE LD.SENIOR COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEES FILED THE APPEALS AGAINST THE ORDERS OF C OMMISSIONER OF INCOME-TAX(A) CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFI CER U/S 271(1)(C) OF THE ACT. ACCORDING TO THE LD.REPRESENTATIVEW, THE TRIBUNAL FEE IN RESP ECT OF APPEALS ARISING OUT OF THE ORDERS OF PENALTY U/S 271(1)(C) IS RS.500. HOWEVER, ON TH E BASIS OF THE MEMO ISSUED BY THE TRIBUNAL, THE ASSESSEE HAS PAID RS.10,000 ON EACH A PPEAL. THEREFORE, THE EXCESS AMOUNT OF RS.9,500 IN EACH APPEAL HAS TO BE REFUNDED. THE LD.SENIOR COUNSEL PLACED HIS RELIANCE ON THE DECISION OF THE CHANDIGARH BENCH OF THIS TRI BUNAL IN DABWALI TRANSPORT CO VS A.C.I.T. (2010) 3 ITR 785 AND SUBMITTED THAT THE CH ANDIGARH BENCH OF THIS TRIBUNAL AFTER PLACING RELIANCE ON THE JUDGMENT OF THE PATNA HIGH COURT IN DR AJIT KUMAR PANDEY 21 DTR 103 FOUND THAT THE APPEAL AGAINST THE PENALTY L EVIED U/S 271(1)(C) IS COVERED UNDER CLAUSE (D) OF SECTION 253(6) OF THE I.T. ACT AND TH EREFORE THE FEE PAYABLE IS ONLY RS.500. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE EXCESS FEE OF RS.9,500 ON EACH APPEAL MAY BE ORDERED TO BE REFUNDED. ON A QUERY FROM THE BENCH ASKING FOR THE EVIDENCE TO PROVE THAT THE ASSESSEE HAS ALREADY PAID RS.9,500 P URSUANT TO THE DEFECT MEMO ISSUED BY THE TRIBUNAL, THE LD.COUNSEL VERY FAIRLY SUBMITT ED THAT SUBJECT TO VERIFICATION, REFUND MAY BE ORDERED. 3 M.A.NOS. 27 TO 35/COCH/2012 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SU BMITTED THAT THE TRIBUNAL HAS ALREADY DISPOSED OF THE APPEALS. THEREFORE, THE AS SESSEE SHOULD HAVE ASKED FOR REFUND BEFORE DISPOSAL OF THE APPEALS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE JUDGM ENT OF THE PATNA HIGH COURT IN DR AJIT KUMAR PANDEY (SUPRA) WHICH WAS FOLLOWED BY THE CO-O RDINATE BENCH OF THIS TRIBUNAL AT CHANDIGARH IN DABWALI TRANSPORT CO (SUPRA) IT IS VE RY CLEAR THAT THE FEE PAYABLE IN RESPECT OF APPEAL FILED ON THE PENALTY LEVIED U/S 2 71(1)(C) IS ONLY RS.500. THEREFORE, IF THE ASSESSEE HAS PAID ANY EXCESS FEE PURSUANT TO TH E DEFECT MEMO ISSUED BY THE TRIBUNAL THE SAME HAS TO BE REFUNDED. ACCORDINGLY, THE DEPARTMENT IS DIRECTED TO REFUND THE EXCESS FEE OF RS.9,500 IN EACH APPEAL SU BJECT TO FILING OF PROOF OF PAYMENT BY THE ASSESSEES. IN OTHER WORDS, THE ASSESSING OFFIC ER AFTER VERIFYING THE EXCESS FEE, IF ANY PAID, SHALL REFUND THE SAME. 5. WITH THE ABOVE OBSERVATIONS, ALL THE MISCELLANEO US APPLICATIONS OF THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH JULY, 2012. (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 20 TH JULY, 2012 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH