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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-II’ NEW DELHI
Before: SMT DIVA SINGH
ORDER The present appeal has been filed by the assessee assailing the correctness of the order dated 22.01.2015 of CIT(A), Rohtak pertaining to 2011–12 assessment year on various grounds. The Registry has pointed out a defect in the present appeal and the assessee was required to address the same. The Ld.AR relying upon the application dated 09.11.2016 filed in the Registry submitted that there is no defect in terms of the decision of the Hon’ble Karntaka High Court in the case of Rajkamal Polymers P.Ltd. vs CIT [2007] 158 Taxman 120 (Karnataka). Relying upon the said decision it was submitted that the Hon’ble High Court considering the fact that the CIT(A) has dismissed the appeal of the assessee on the grounds of limitation held that such an order would fall under clause (d) of section 253(6) of the Act.
The Ld.AR relying upon the said decision submitted that accordingly there is no defect as it is deemed to be cured in terms of the following paras of the said decision:-
5. “Admitted facts would reveal of several adverse orders at the hands of assessing authority. Appeals were filed along with delay application. Delay was not considered in each one of the appeals. Appeals stood rejected only on the ground of delay. When those orders were challenged before the Tribunal, Registrar has chosen to demand a sum of Rs. 10,000 in the light of the order of assessing authority. The Tribunal has accepted Registrar's objection in terms of the impugned order.
Section 253(6) of the Act would read as under:— "(6) An appeal to the Appellate Tribunal shall be in the prescribed form 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,—
I.T.A .No.-3388/Del/2015 Rakesh Goel vs ITO Page 2 of 4 (a) whether the total income of the assessee as computed by the Assessing Officer, in 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 in the 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 in 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 thousand rupees, (d)where the subject-matter of an appeal relates to any matter other than those specified in clauses (a), (b) and (c ), five hundred rupees:— Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross objections referred to in sub-section (4)."
A careful reading of the said section would show the scale of fees is mentioned in the light of assessment at the hands of assessing authority in terms of the money payable by the assessee. Section 253(6)(a) of the Act would provide that if the total income as computed by the Assessing Officer is one hundred thousand rupees, court fee payable is five hundred rupees. Section 253(6)(b) would provide that in the case of appeal involving more than one hundred thousand rupees but not more than two hundred thousand rupees, court fee payable is one thousand five hundred rupees. Section 253(6)(c) would provide that in the case of appeal involving more than two hundred thousand rupees, court fee payable is one per cent of assessed income subject to a maximum of ten thousand rupees. Section 253(6)(d) would provide that in the event of subject-matter of the appeal relate to any matter other than those specified in clauses (a), (b) and (c) court fee payable is five hundred rupees.
In the case on hand, it is seen that the appellate Commissioner has chosen to reject the appeal on the ground of limitation. In our view, such an order would fall within clause (d) of section 253(6) of the Act. Hence, only a sum of Rs. 500 is payable in terms of section 253(6)(d) of the Act. Unfortunately, the Tribunal, without even looking into the basic requirement of court fee, has chosen to blindly accept the objection of the Registrar. In the circumstances, we are satisfied that the appellant is justified in complaining that order of the Tribunal runs counter to section 253(6)(d) of the Act. We accept the submission of appellant-assessee. On the facts and given circumstances, we deem it proper to hold that appellant is liable to pay court fee at the rate of Rs. 500 of each one of the appeals for the purpose of maintaining appeals before the Tribunal, The appellant has made over the court fee of Rs. 12,000, Since the appellant is only liable to pay a sum of Rs. 2,500 as court fee, Registrar is directed to refund the balance sum of Rs. 9,500 to the appellant within one month from today. On failure, appellant is entitled for interest at the rate of 10 per cent p.a. for delayed payment from the date of delay till the date of payment.”
Inviting attention the Grounds No.1, 2 & 3 of the appeal filed, it was his prayer that the impugned order may be set aside on the grounds of lack of opportunity. Referring to the record, it was submitted that on the three occasions i.e 22.12.2014; 05.01.2015; and 20.01.2015 when the case was stated to be listed, no notice for the specific date of hearing was received by the assessee. The dismissal of the appeal by the CIT(A) relying upon the CIT vs Multiplan (India) Ltd. 38 ITD (Del.)320; Late Tukoji Rao Holkar vs CWT (1997) 223 ITR 480 (MP) on these facts, it was submitted not in accordance with law. In the circumstances, it was I.T.A .No.-3388/Del/2015 Rakesh Goel vs ITO
Page 3 of 4 his limited prayer that the impugned order may be set aside and the opportunity of being heard may be granted to the assessee.
Ld. Sr.DR considering the prayer had no objection if the order is passed after hearing the assessee.
I have heard the rival submissions and perused the material available on record, relying upon the decision of the Hon’ble Karnataka High Court in the case of Rajkamal Polymers P.Ltd. vs CIT (cited supra), I hold that the defect pointed out by the Registry is deemed to be cured.
Addressing the arguments on merit wherein the limited prayer of the Ld.AR was that the issue be remanded. I find that the dismissal of the assessee’s appeal in the peculiar facts of the present case where no notice for the specific date had been received by the assessee cannot be said to be in accordance with law. Accordingly, the impugned order deserves to be set aside. Apart from this, it is seen that the impugned order cannot stand in the eyes of law as the Ld. Commissioner (Appeals), Rohtak has dismissed the assessee’s appeal on the grounds of non-representation and not on merits. Sub-section (6) of section 250 of the Income Tax Act, 1961, it is seen requires that “the CIT(A) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision”. While deciding the appeal, it is seen that the Ld.CIT(A) has not cared to adhere to the Statutory mandate. Accordingly, in order to address this Statutory deficit, the impugned order is set aside.
4.1. In these circumstances, accepting the oral undertaking of the Ld.AR that the assessee shall participating in the proceedings, the impugned order is set aside and the issues are restored to the file of the CIT(A) with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.
In the result, the appeal of the assessee is allowed for statistical purposes.
The order is pronounced in the open court on 01 of February 2017.