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Facts
Assessee's original return for AY 2018-19 had depreciation adjusted under Section 143(1). After filing a revised return and rectification application under Section 154, the depreciation was allowed, and the full refund was issued. The assessee then appealed to the CIT(A) and subsequently to the ITAT, primarily seeking a refund of the appeal filing fees incurred (Rs. 1000 for CIT(A) and Rs. 500 for ITAT), despite having received the substantive relief on merits.
Held
The Tribunal held that there is no statutory provision in the Income Tax Act (sections 240, 244A, 249, 253) for the refund of appeal filing fees, as these fees are a statutory levy and not an "amount due to the assessee as a result of any order". The Tribunal concluded it lacks the power to direct a refund of these fees, especially since the assessee had already obtained the relief sought on merits.
Key Issues
Whether appeal filing fees paid under Section 249 and Section 253 are refundable when the assessee has already obtained relief on the merits of the case, and if there is a statutory provision for such refund under the Income Tax Act.
Sections Cited
143(1), 139(5), 154, 249, 240, 244A, 253, 254, 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘E‘ BENCH
आदेश / O R D E R PER AMIT SHUKLA (J.M): The aforesaid appeal has been filed by the assessee against order dated 26/02/2024 passed by ld. Addl. / JCIT(A)-4, Delhi in relation to adjustment made u/s.143(1) for the A.Y.2018-19. 2. The relevant grounds raised by the assessee reads as under:- 1. The learned Additional/Joint Commissioner of Income Tax (Appeals)-4, Delhi, erred in dismissing the appeal without giving the appellant a video conference hearing.
2 ITA No.2178/Mum/2024 Shri Hemant Joshi
The learned Additional/Joint Commissioner of Income Tax (Appeals)-4, Delhi, erred in not adjudicating the remaining issue in the appeal, i.e., the refund of appeal filing fees of Rs. 1,000 which the appellant was compelled to pay for non-application of mind by the Deputy Commissioner of Income Tax, CPC, Bengaluru. 3. The appellant prays for a refund of appeal filing fees of Rs. 1,000 before the Commissioner (Appeals} and Rs. 500 before this Honorable Tribunal because the appellant has been compelled to pay them for dereliction of duty by the Additional/Joint Commissioner of Income Tax (Appeals} - 4, Delhi, and the Deputy Commissioner of Income Tax, CPC, Bengaluru. The appellant is entitled to this refund in terms of sections 240, and 244A, read with section 254 of the Income Tax Act, 1961. 4. Without prejudice and in the alternative, if not appeal filing fees, then the appellant may be awarded the cost of Rs. 1,500 towards filing of this appeal.
The brief facts are that assessee has filed original return for A.Y.2018-19 electronically on 30/08/2018 declaring total income of Rs.10,01,910/- and claimed refund amounting to Rs.54,316/- Assessee has also claimed depreciation of Rs.67,159/- in the original return of income. The said depreciation was adjusted in the intimation u/s.143(1) dated 28/02/2019 as according to ld. Counsel, since it was claimed under a wrong column in the Return of Income, CPC made adjustment. Thereafter, assessee filed a revised return u/s. 139(5) on 20/01/2019 declaring total income amounting to Rs.10,51,910/- thereby, enhancing the income by Rs.50,000/- and reducing the refund amount of Rs.38,870/-. Assessee then filed rectification application u/s 154 before the AO/ CPC for allowing the depreciation of Rs.67,159/-, which was subsequently allowed by the CPC vide order dated
3 ITA No.2178/Mum/2024 Shri Hemant Joshi 16/08/2019 u/s.154. However, before the rectification was carried out by the AO/CPC, assessee filed an appeal before the ld. CIT(A). As per the requirement of the Act, if the assessee files an appeal before the First Appellate Authority, then Section 249 provides a limit for filing of fees which is maximum upto Rs.1000/-. If the appeal is not accompanied by the fees paid, the appeal itself is not maintainable. It is statutory requirement for filing of fees if assessee prefers appeal. The Grounds raised in first appeal in the Form No. 35 reads as under:- 1. The learned Deputy Commissioner erred in disallowing the appellant's claim for depreciation of INR 67,159 on fixed assets while computing appellant's income under the head profits and gains of business or profession. 2. The learned Deputy Commissioner erred in restricting the appellant's refund to INR 33,563 Instead of INR 54,316 as claimed in the original return. 3. The appellant reserves the right to add, amend or alter any of the above grounds of appeal. 4. In response to notice before the ld. CIT(A), assessee has filed three written submissions before the First Appellate Authority and in one such submission was refund of filing fees of Rs. 1,000/- . Since the relief was allowed subsequently, the only ground/ plea which was left to be adjudicated before the First Appellate Authority was refund the filing fees Rs.1000/- as claimed by way of submission, because assessee has duly admitted that CPC has already allowed depreciation of Rs.67,159/- and has also issued refund and there was no grievance left on merits. Since assessee had already got relief,
4 ITA No.2178/Mum/2024 Shri Hemant Joshi therefore, Ld. First Appellate Authority held that the grounds are not required to be adjudicated. On issue of interest on refund of Rs. 38,870/- AO was directed to grant/allow interest u/s 244A. The relevant observation reads as under:- “6.Decision: 6.1 Ground No. 1 6.1.1.1 have perused the intimation u/s 143(1) dated 28.02.2019 of Original ITR dated 30/08/2018 and the intimation u/s 143(1) dated 16.08.2019 of Revised ITR dated 20/01/2019 and examined the reply of the appellant. CPC has already allowed the depreciation amounting to Rs.67,159/- while processing the revised ITR dated 20/01/2019 and subsequently issued the refund to the assessee. Assessee in its reply dated 07/01/2022 has categorically mentioned that he has received full tax refund of Rs.38,870/- as per the revised return of income in rectification, grievance and further rectification. As assessee has already got the relief on this issue, hence, this ground of appeal is not required to be adjudicated and thus, dismissed. 6.2 Ground No. 2 6.21.Ground No. 2 related to reduction of refund amounting to Rs.54,316/- to Rs. 33,563/- On perusal of the facts of the case, it is found that the assessee has enhanced income by Rs.50,000/- in the revised return and the refund claimed also reduced to Rs.38,870/- from Rs. 54,316/- Assessee in its reply dated 07/01/2022 has categorically mentioned that he has received full tax refund of Rs.38,870/- as per the revised return of income in rectification, grievance and further rectification. A.O. Is directed to grant allowable interest u/s 244A of the Income Tax Act while passing order to give effect to this appellate order. Hence, Ground No 2 is dismissed 7.In the result, appeal is treated as dismissed.”
5 ITA No.2178/Mum/2024 Shri Hemant Joshi 5. The only grievance raised by the assessee before us is that, ld. First Appellate Authority had passed the order without allowing him video conference hearing and not deciding the refund of appeal filing fees of Rs.1,000/-. Assessee submitted before us that this issue was specifically brought to the notice vide written submission dated 07/01/2022. The ld. First Appellate Authority also issued a notice on 08/01/2022 u/s.250 directing him to explain the provision of the Act which is entitled to refund for appeal filing fees of Rs.1,000/-. He further submitted that since ld. JCIT(A) has not decided the refund of fees of Rs.1,000/-, he was compelled to file the appeal before this Tribunal by paying filing fees of Rs.500/- which he submitted that same should also be refunded. In support of his claim of refund of the filing fees of Rs.1,000/- in filing of first appeal before the First Appellate Authority and Rs.500/- filing fees before the Tribunal as referred and relied upon Section 240 and 244A of the Act. Apart from that he has also stated as under:- “Though "right to property" is no longer part of the fundamental rights under article 19 of the Constitution of India, article 21 titled "Protection life and personal liberty" is still part of the fundamental rights under the Constitution. Protection of human life as envisaged under article 21 is not just a protection of animal life of a human but a protection of a life of honor and dignity. The right to a fair trial and the right to compensation are inherent in Article 21, which protects human life and personal liberty. Reference may be made to the case of Rudul Sah v. State of Bihar AIR 1983 SC 1086. Though this is a case in the context of illegal confinement of a human being, it recognizes the right to compensation under article 21.”
6 ITA No.2178/Mum/2024 Shri Hemant Joshi 6. We have heard the assessee and perused the records. The only grievance is that assessee should be granted refund of filing fees of Rs.1,000/- filed for first appeal in terms of Section 249 of the Act which is a statutory fees of filing fees before the First Appellate Authority; and Rs.500/- towards filing fees before the Tribunal in terms of sub-Section (6) of Section 253. In so far as refund of filing fees, the ld. Counsel had stated that it should be granted in terms of Section 240 r.w.s. 244A. Section 240 states that refund of any amount becomes due to the assessee as a result of any order passed in appeal or other proceedings under this Act. Thus, the basic condition is the refund should arise as a result of any order passed and not refund of filing fees which is a statutory requirement u/s.249 and Section 253 of the Act. Section 244A provides interest on refunds where refund of any amount becomes due to the assessee in this Act. Here the refund of filing fees is neither a result of any order passed in the appeal or other proceedings under the Act nor there is any order of refund on which interest has to be paid. 7. The filing fees / Court fees is statutory levy which is paid by the litigant or the assessee to file an appeal, if the assessee has any grievance against any disallowance / addition made as a result of any order passed by the authorities as prescribed under the Act. There is no such provision under the Act that filing fees should be refunded. It is also not a case that assessee has filed more than the required fees as provided under the Act nor it is a case where assessee has paid doubly the amount of fees. It is under these situations and circumstances the Tribunal or the
7 ITA No.2178/Mum/2024 Shri Hemant Joshi First Appellate Authority, can direct the AO or Registry to refund the excess fees paid by the litigant assessee. 8. Before us there is no such provision or any judgment of any Court has been brought to the notice that even if assessee does not have any grievance on merits, he can still ask for return on the filing fees. Assessee has referred to the concept of “right to property” as provided in the Constitution of India. We failed to understand how the refund of a statutory fees which has been provided under the statute for filing an appeal is covered under the “right to property” as enshrined in the Constitution of India. If ld. CIT (A) has not adjudicated about the refund of filing fees of Rs.1,000/- then also we failed to understand how it is a denial of fair trial and where is this question of protection of life and honour and dignity. If assessee was aggrieved by the system failure under the CASS, then assessee should have raised the grievance before the administrative authorities. In any case assessee had availed remedy of filing rectification application u/s.154 and also the first appeal. That is, assessee has exercised both the remedies and in one of the remedy assessee had got the relief sought for. Even if the appeal was dismissed on the ground that already assessee has got relief, then there is no such provision that appeal fees filed u/s.249 is to be refunded. We frown upon for filing of such frivolous appeal and arguing the matter at length without any basis and wasted time of the Court for which assessee is liable for imposing of cost also. However, we are refraining from imposing any cost due to ignorance of the assessee. If assessee still feels aggrieved by this order, then he
8 ITA No.2178/Mum/2024 Shri Hemant Joshi can pursue the remedy before the constitutional Court for getting refund of filing fees of Rs.1,500/- because there is no statutory power to this Tribunal to grant refund of the filing fees. It is reiterated here that it is not a case of assessee filing of any excess fees which we can direct the Registry to refund. Accordingly, with these observations appeal of the assessee is dismissed. 9. In the result, appeal of the assessee is dismissed. Order dictated and pronounced in the open court on 9th July, 2024.
Sd/- Sd/- (GAGAN GOYAL) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 09/07/2024 KARUNA, sr.ps
Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// BY ORDER,
(Asstt. Registrar) ITAT, Mumbai