MANGESH SAWANT,MUMBAI V. DCIT, CIRCLE-42(1)(1), MUMBAI

MA 97/MUM/2025

AI Insights

The case involves Mangesh Sawant, the appellant, who sought to recall an order from the Income Tax Appellate Tribunal, which had previously dismissed his appeal due to a shortfall in the appeal fee and a delay in filing. The Tribunal had dismissed the original appeal in-limine, granting liberty to file a fresh appeal upon rectifying the deficiencies. In the Miscellaneous Application, the appellant argued that the appeal fee had been correctly paid and challenged the dismissal of his appeal on procedural grounds. The Tribunal, however, upheld its earlier decision, citing the absence of compliance with procedural requirements and the lack of substantive grounds to recall the order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 712493 (ITAT-MUMBAI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Assessment Year: 2013-2014
• Other Referred Cases: Rajkamal Polymers (P.) Ltd. vs. CIT, Anil Kumar Ojha vs. CIT, Dasha Sorathia Vanik Samaj Trust vs. CIT
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANNAVARAMKOSURI
• Assessee Lawyers: POOJAN MEHTA
• Keywords: Opportunity of being heard

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAJ KUMAR CHAUHAN (JUDICIAL MEMBER) MA No. 97/MUM/2025 (Arising out of ITA No. 2742/MUM/2024) Assessment Year: 2013-14 Mangesh Sawant, A/004, Prathamesh Horizon, New MHB Colony, Gorai, Borivali (West), Mumbai-400091. Vs. Dy. CIT Circle-42(1)(1) Room No. 720, Kautilya Bhavan, Bandra Kurla Complex, Bandra (East), Mumbai-400051. PAN NO. AAGPS 0518 M Appellant Respondent Assessee by : Mr. Poojan Mehta Revenue by : Mr. Annavaram Kosuri, Sr. DR Date of Hearing : 27/06/2025 Date of pronouncement : 30/07/2025 ORDER PER OM PRAKASH KANT, AM The present Miscellaneous Application has been preferred by the assessee seeking recall of the order passed by the Tribunal dated 10.03.2024 in ITA No. ITA No. 2742/Mum/2024, pertaining to the Assessment Year 2014–15. By the said order, the appeal of the assessee was dismissed in-limine on the ground that the appeal fee paid was deficient by an amount of ₹9,500/–. Printed from counselvise.com 2. The Registry had, vide defect memo dated 21.05.2024, intimated the assessee of two deficiencies was accompanied by extent of ₹9,500/–; and secondly, that the appeal was filed beyond the prescribed limitation by a delay of 31 days. Despite affording opportunities on more than one occasion, the assessee neither responded to the defect memo nor took steps to remove the defects. Consequently, the Tribunal dismissed the appeal liberty to the assessee to file a fresh appeal upon due compliance. The relevant extract of the Tribunal’s order reads as under: “2. At the outset, we may like to refer the defect memo issued by the Registry vide letter dated 21.05.2024, wherein two defects were pointed out, fee was short by Rs. 9500/ barred by 31 days. The assessee did not respond to the defect memo particularly with respect to appeal fee short by Rs.9,500/-. Despite providing opportunity of being heard on the two occasions, the assessee did not comply with the requirement of the appeal fee and therefore, we reject the appeal in limine with liberty to the assessee to file another appeal, if so advised, after paying the requisite amount of appeal fee.” 3. In support of the present application, learned counsel for the assessee submitted that the payment of appeal fee amounting to ₹500/– was in fact correctly made in terms of the provisions of Section 253(6)(d) of the Income contended that the assessee had challenged the non grounds filed in prescribed Form No. 35 The Registry had, vide defect memo dated 21.05.2024, intimated the assessee of two deficiencies—firstly, that the appeal was accompanied by a shortfall in the prescribed appeal fee to the ; and secondly, that the appeal was filed beyond the prescribed limitation by a delay of 31 days. Despite affording opportunities on more than one occasion, the assessee neither the defect memo nor took steps to remove the defects. Consequently, the Tribunal dismissed the appeal liberty to the assessee to file a fresh appeal upon due compliance. The relevant extract of the Tribunal’s order reads as under: e outset, we may like to refer the defect memo issued by the Registry vide letter dated 21.05.2024, wherein two defects were pointed out, firstly, the appeal fee was short by Rs. 9500/- and secondly, the appeal was barred by 31 days. The assessee did not respond to the defect memo particularly with respect to appeal fee short by . Despite providing opportunity of being heard on the two occasions, the assessee did not comply with the ent of the appeal fee and therefore, we reject the appeal in limine with liberty to the assessee to file another appeal, if so advised, after paying the requisite amount of In support of the present application, learned counsel for the essee submitted that the payment of appeal fee amounting to was in fact correctly made in terms of the provisions of Section 253(6)(d) of the Income-tax Act, 1961 [“the Act”]. It was contended that the assessee had challenged the non filed in prescribed Form No. 35 by the Commissioner Mangesh Sawant 2 MA No. 97/MUM/2025 The Registry had, vide defect memo dated 21.05.2024, firstly, that the appeal a shortfall in the prescribed appeal fee to the ; and secondly, that the appeal was filed beyond the prescribed limitation by a delay of 31 days. Despite affording opportunities on more than one occasion, the assessee neither the defect memo nor took steps to remove the defects. Consequently, the Tribunal dismissed the appeal in-limine with liberty to the assessee to file a fresh appeal upon due compliance. The relevant extract of the Tribunal’s order reads as under: e outset, we may like to refer the defect memo issued by the Registry vide letter dated 21.05.2024, , the appeal the appeal was barred by 31 days. The assessee did not respond to the defect memo particularly with respect to appeal fee short by . Despite providing opportunity of being heard on the two occasions, the assessee did not comply with the ent of the appeal fee and therefore, we reject the appeal in limine with liberty to the assessee to file another appeal, if so advised, after paying the requisite amount of In support of the present application, learned counsel for the essee submitted that the payment of appeal fee amounting to was in fact correctly made in terms of the provisions of tax Act, 1961 [“the Act”]. It was contended that the assessee had challenged the non-adjudication of by the Commissioner Printed from counselvise.com (Appeals). In support, reliance was placed on the judgment of the Hon’ble Karnataka High Court in 158 Taxman 120 (Kar)], and the decisions of coordinate benche the Tribunal in Anil Kumar Ojha Dasha Sorathia Vanik Samaj Trust 4. We have heard rival submissions of the parties and perused the relevant materials on record governed by section 253(6) of the Act. For ready section is reproduced as under: 61[(6) An appeal to the Appellate Tribunal shall be in the pre and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998, irrespective of the date of initiation of the assess accompanied by a fee of, (a) where the total income of the assessee as computed by the Assessing Officer, 63in 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, case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, one thousand five hundred rupees, (c) where the total income of the assessee, computed as aforesaid, case to which the appeal relates is more than two hundred thousand rupees, one per cent of the assessed income, subject to a maximum thousand rupees, 64[(d) where the 65subject matter of an appeal relates to any matter, other than those specified in clauses (a), (b) and (c), five hundred rupees:] 66[Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2), or, sub-section (2A) as it stood before its amendment by the Finance Act, 2016, or, a memorandum of cross objections referred to in su section (4).] (Appeals). In support, reliance was placed on the judgment of the Hon’ble Karnataka High Court in Rajkamal Polymers (P.) Ltd. 158 Taxman 120 (Kar)], and the decisions of coordinate benche Anil Kumar Ojha (ITA No. 189/Mds/2012) and Dasha Sorathia Vanik Samaj Trust (ITA Nos. 286–288/Ahd/2023). We have heard rival submissions of the parties and perused the relevant materials on record. The payment of appeal fee is governed by section 253(6) of the Act. For ready section is reproduced as under: [(6) An appeal to the Appellate Tribunal shall be in the pre and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of,- where the total income of the assessee as computed by the Assessing in the case to which the appeal relates, is one hundred thousand rupees or less, five hundred rupees, where the total income of the assessee, computed as aforesaid, case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, one thousand upees, where the total income of the assessee, computed as aforesaid, case to which the appeal relates is more than two hundred thousand rupees, one per cent of the assessed income, subject to a maximum thousand rupees, subject matter of an appeal relates to any matter, other than those specified in clauses (a), (b) and (c), five hundred rupees:] that no fee shall be payable in the case of an appeal referred to in section (2A) as it stood before its amendment by the Finance Act, 2016, or, a memorandum of cross objections referred to in su Mangesh Sawant 3 MA No. 97/MUM/2025 (Appeals). In support, reliance was placed on the judgment of the Rajkamal Polymers (P.) Ltd. [(2006) 158 Taxman 120 (Kar)], and the decisions of coordinate benches of (ITA No. 189/Mds/2012) and Shree 288/Ahd/2023). We have heard rival submissions of the parties and perused The payment of appeal fee is governed by section 253(6) of the Act. For ready reference said [(6) An appeal to the Appellate Tribunal shall be in the prescribed form 62 and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998, irrespective of the ment proceedings relating thereto, be where the total income of the assessee as computed by the Assessing in the case to which the appeal relates, is one hundred where the total income of the assessee, computed as aforesaid, 63in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, one thousand where the total income of the assessee, computed as aforesaid, 63in the case to which the appeal relates is more than two hundred thousand rupees, one per cent of the assessed income, subject to a maximum of ten subject matter of an appeal relates to any matter, other than those specified in clauses (a), (b) and (c), five hundred rupees:] that no fee shall be payable in the case of an appeal referred to in section (2A) as it stood before its amendment by the Finance Act, 2016, or, a memorandum of cross objections referred to in sub- Printed from counselvise.com 4.1 The Hon’ble Karnataka High Court Polymers Pvt. Ltd. (supra), (Appeals) had chosen against the assessment and penalty orde limitation, said orders sum of Rs.500/- would be payable in Court fee in terms of section for each appeal for purpose of of the Commissioner (Appeals) of Anil Kumar Ojha (supra) High Court in the case of Rajkaml Polymers Pvt. Ltd. has been considered and it is held that when the Ld. CIT(A) reject the appeals on the ground of limitation, the fee payabl the Tribunal would be Rs.500/ case of Shree Dasha Sorathia Vanik Samaj Trust (supra Tribunal has relied on the decision of the Hon’ble Karnataka High Court in the case of Rajkamal Po already discussed. 4.2 The quantum of appeal fee is governed by Section 253(6 Act, which, inter-alia dispute before the Tribunal relates to orders passed by the Commissioner (Appeals) under Section 250, and such order pertains to dismissal on preliminary grounds (such as limitation), the prescribed fee is ₹ The Hon’ble Karnataka High Court in the case of Polymers Pvt. Ltd. (supra), held that where Commissioner chosen to reject the appeal filed by the assessee against the assessment and penalty orders on the grounds of said orders would fall within section 253(6)(d) and only would be payable in Court fee in terms of appeal for purpose of maintaining against the order of the Commissioner (Appeals) before Tribunal. Furthe Anil Kumar Ojha (supra) also decision of the Hon’ble Karnataka High Court in the case of Rajkaml Polymers Pvt. Ltd. has been considered and it is held that when the Ld. CIT(A) reject the appeals on the ground of limitation, the fee payable for further appeal before the Tribunal would be Rs.500/- under 253(6)(d) of the Act. In the Shree Dasha Sorathia Vanik Samaj Trust (supra Tribunal has relied on the decision of the Hon’ble Karnataka High Court in the case of Rajkamal Polymers Pvt. Ltd. which we have The quantum of appeal fee is governed by Section 253(6 alia, provides that where the subject matter of dispute before the Tribunal relates to orders passed by the Commissioner (Appeals) under Section 250, and such order pertains to dismissal on preliminary grounds (such as limitation), ₹500/– under clause (d). Mangesh Sawant 4 MA No. 97/MUM/2025 n the case of Rajkaml where Commissioner to reject the appeal filed by the assessee on the grounds of within section 253(6)(d) and only would be payable in Court fee in terms of said maintaining against the order Further, in the case also decision of the Hon’ble Karnataka High Court in the case of Rajkaml Polymers Pvt. Ltd. has been considered and it is held that when the Ld. CIT(A) reject the appeals e for further appeal before under 253(6)(d) of the Act. In the Shree Dasha Sorathia Vanik Samaj Trust (supra) also the Tribunal has relied on the decision of the Hon’ble Karnataka High lymers Pvt. Ltd. which we have The quantum of appeal fee is governed by Section 253(6) of the , provides that where the subject matter of dispute before the Tribunal relates to orders passed by the Commissioner (Appeals) under Section 250, and such order pertains to dismissal on preliminary grounds (such as limitation), Printed from counselvise.com 4.3 The decisions relied upon by the assessee do support the proposition that where an appeal before the Commissioner (Appeals) is rejected purely on the ground of limitation, the fee payable before the Tribunal would be examining the facts of the present case, it emerges that the appeal before the Commissioner (Appeals) was not dismissed on limitation alone, but on account of non by the assessee. Therefore, the decisions cited are on facts and do not advance the assessee’s case. 4.4 Moreover, the Tribunal in its impugned order had expressly granted liberty to the assessee to file a fresh appeal after due compliance, including the payment of requisite fee. This direct ensures that the assessee is not left remediless. 4.5 As regards the second defect pertaining to the delay of 31 days in filing the appeal, it is evident from the record that the assessee, despite being informed through the defect memo dated 21.05.2024 did not file any application for condonation of delay. The failure to seek condonation in accordance with law renders the appeal procedurally untenable. 4.6 In view of the foregoing discussion, the submissions made in support of the present application d ground for recall of the Tribunal’s order has been made out. 4.3 The decisions relied upon by the assessee do support the proposition that where an appeal before the Commissioner (Appeals) is rejected purely on the ground of limitation, the fee payable before the Tribunal would be ₹500/–. However, examining the facts of the present case, it emerges that the appeal before the Commissioner (Appeals) was not dismissed on limitation alone, but on account of non-representation and non by the assessee. Therefore, the decisions cited are on facts and do not advance the assessee’s case. Moreover, the Tribunal in its impugned order had expressly granted liberty to the assessee to file a fresh appeal after due compliance, including the payment of requisite fee. This direct ensures that the assessee is not left remediless. As regards the second defect pertaining to the delay of 31 days in filing the appeal, it is evident from the record that the assessee, despite being informed through the defect memo dated 21.05.2024 did not file any application for condonation of delay. The failure to seek condonation in accordance with law renders the appeal procedurally untenable. In view of the foregoing discussion, the submissions made in support of the present application do not merit acceptance. No ground for recall of the Tribunal’s order has been made out. Mangesh Sawant 5 MA No. 97/MUM/2025 4.3 The decisions relied upon by the assessee do support the proposition that where an appeal before the Commissioner (Appeals) is rejected purely on the ground of limitation, the fee . However, upon examining the facts of the present case, it emerges that the appeal before the Commissioner (Appeals) was not dismissed on limitation representation and non-prosecution by the assessee. Therefore, the decisions cited are distinguishable Moreover, the Tribunal in its impugned order had expressly granted liberty to the assessee to file a fresh appeal after due compliance, including the payment of requisite fee. This direction As regards the second defect pertaining to the delay of 31 days in filing the appeal, it is evident from the record that the assessee, despite being informed through the defect memo dated 21.05.2024, did not file any application for condonation of delay. The failure to seek condonation in accordance with law renders the appeal In view of the foregoing discussion, the submissions made in o not merit acceptance. No ground for recall of the Tribunal’s order has been made out. Printed from counselvise.com 4. In the result, the dismissed. Order pronounced in the open Court on Sd/ (RAJ KUMAR CHAUHAN JUDICIAL MEMBER Mumbai; Dated: 30/07/2025 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// In the result, the Miscellaneous Application of the assessee is nounced in the open Court on 30/07/2025. Sd/- RAJ KUMAR CHAUHAN) (OM PRAKASH JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Mangesh Sawant 6 MA No. 97/MUM/2025 of the assessee is /07/2025. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai Printed from counselvise.com "