M/s Manish Trading C0. Kanpur, Kanpur V. ACITII, Kanpur

MA 53/LKW/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9133 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-07-2012
• Assessment Year: misc
• Appeal Filed On: 02-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI SANJAY ARORA , ACCOUNTANT MEMBER M. A NO. 53/LKW/2011 [ARISING OUT OF ITA NO. 18/LUC/2005] ASSESSMENT YEAR: 1990 - 91 M/S MANISH TRADING CO. KANPUR V. ACIT - II KANPUR PAN: AANFM9360N (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. R. K. RAM, D.R. DATE OF HEARING: 27.07.2012 DATE OF PRONOUNCEMENT: 22.08.2012 O R D E R PER S UNIL KUMAR YADAV : THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEHALF OF THE ASSESSEE WITH A REQUEST FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 31.7.2006 IN ITA NO. 18/LUC/2005 DISMISSING THE APPEAL OF THE ASSESSEE FOR WANT OF PAYMENT OF PROPER TRIBUNAL FEE . 2 . WHILE FILING T HE APPEAL, THE ASSESSEE HAS MADE A PAYMENT OF ` 500 TOWARDS TRIBUNAL FEE AND THE REGISTRY HAS RAISED AN OBJECTION WITH REGARD TO THE DEFICIENCY IN TRIBUNAL FEE AND ACCORDINGLY THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE ON ACCOUNT OF DEFICIENCY IN TRI BUNAL FEE AFTER REJECTING THE CONTENTIONS OF THE ASSESSEE THAT AS PER PROVISIONS OF CLAUSE (D) OF SECTION 253(6) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN : - 2 - : SHORT THE ACT'), THE ASSESSEE WAS REQUIRED TO DEPOSIT ONLY ` 500 AS TRIBUNAL FEE IN APPEAL F ILED AGAINST PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT . T HOUGH THERE WAS A CONTROVERSY WITH REGARD TO THE PAYMENT OF TRIBUNAL FEE IN APPEAL AGAINST PENALTY ORDERS , YET THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE TRIBUNAL. NOW THE CONTRO VERSY IN THIS REGARD HAS BEEN SET AT REST BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF SRI BIDYUT KUMAR SETT V. ITO [2005] 272 ITR (AT) 75 (SB) WHEREIN IT HAS BEEN HELD THAT IN THE MATTER CONCERNING LEVY OF PENALTY, ONLY ` 500 IS PAYABLE TOWARDS INST ITUTION FEE . THE KARNATAKA HIGH COURT IN THE CASE OF RAJAKAMAL POLYMERS PVT. LTD. V. CIT, 291 ITR 314 AND THE PATNA HIGH COURT IN THE CASE OF DR. AJITH KUMAR PANDEY V. ITAT, 310 ITR 195 HAVE ALSO HELD THAT IN THE MATTERS CONCERNING LE VY OF PENALTY , ONLY ` 500 IS PAYABLE TOWARDS INSTITUTION FEE FOR THE TRIBUNAL. SINCE THE CONTROVERSY HAS BEEN SET AT REST, THE ORDER OF THE TRIBUNAL , WHICH WAS PASSED CONTRARY TO THE LEGAL PROVISIONS RELATING TO PAYMENT OF TRIBUNAL FEE, MAY BE RECALLED AND THE APPEAL MAY BE HE ARD ON MERIT. 3 . THE LD. D.R. DID NOT DISPUTE THE FACTUAL ASPECT. HE, HOWEVER, OBJECTED TO RECALLING OF THE ORDER OF THE TRIBUNAL ON THIS GROUND. 4 . HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE JUDGMENTS REFERRED TO BY THE PARTIES, WE AR E OF THE VIEW THAT AT THE RELEVANT POINT OF TIME WHEN THE TRIBUNAL HAS PASSED THE IMPUGNED ORDER DISMISSING THE APPEAL OF THE ASSESSEE FOR WANT OF TRIBUNAL FEE , THERE WAS CONTROVERSY WITH REGARD TO THE QUANTUM OF TRIBUNAL FEE ON APPEAL AGAINST THE PENALTY ORDERS. BUT NOW THE CONTROVERSY HAS BEEN SET AT REST BY THE ORDER OF THE SPECIAL BENCH OF THE TRIBUNAL AND THE JUDGMENT S OF THE AFORESAID HIGH COURTS. SINCE THE LEGAL POSITION HAS BEEN MADE CLEAR IN THIS REGARD, WE ARE OF THE VIEW THAT THE ORDER OF THE T RIBUNAL DATED 31.7.2008 BE RECALLED AND THE APPEAL BE HEARD ON MERIT. WE ACCORDINGLY RECALL THE : - 3 - : IMPUGNED ORDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR HEARING IN DUE COURSE. PARTIES BE INFORMED ACCORDINGLY. 5 . IN THE RESULT, MISCELLA NEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.8.2012. S D/ - S D/ - [SANJAY ARORA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22.8.2012 JJ: 3007 COPY FORWARDED TO: 1 . APP LIC ANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR