S. N. COLD STORAGE (P) LTD.,HOOGHLY vs. JCIT, R-2, HOOGHLY, HOOGHLY

- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-6, Kolkata dated 19.01.2016. Assessment was framed by JCIT, Range-2, Hooghly u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 28.03.2013 for assessment year 2010-11. Subash Agarwaal, Advocate, appeared on behalf of assessee and Shri Arindm Bhattacherjee, Ld. Departmental Representative appeared on behalf of Revenue.

The first issue raised by assessee is that Ld CIT(A) erred in confirming the order of Assessing Officer without providing reasonable opportunity of being heard.

At the outset it was observed that the registry of ITAT has pointed out the defect in the appeal filed by the assessee on the ground that the appeal has been filed without making the payment of requisite amount. As per the registry there was short A.Y. 2010-11 S.N.Cold Storage (P) Ltd. Vs. JCIT, Rn-2, Hlg. Page 2 payment of Rs. 6249.00 only. The assessee was liable to pay an amount of 1% of the disputed amount i.e. 6749.00 being 1% of 6,74,934.00 as per the provisions of Section 253(6)(c) of the Act whereas the assessee has paid the fee Rs. 500 only. Thus there was short payment of Rs. 6249.00 only.

In this regard the Ld AR submitted that in the instant case the disputed amount represents the loss for Rs. 6,74,934.00 only. Thus as per the Ld AR, the assessee is liable to pay fee of Rs.500 in case the disputed amount represents the loss in terms of the provisions of section 253(6)(d) of the Act. In this connection the Ld AR relied on the judgment of Hon’ble Bombay High Court in the case of Gilbs Computer Limited v. ITAT, ACIT, Union of India- Writ Petition number 1021 of 2009. The relevant extract of the order is reproduced below: - “… … considering the entire scheme of the Act and the history of the purpose of the amendment, we have no difficulty in holding that either clause (a) or (d) of sub- section (6) of section 253 would be attracted but considering the earlier discussion regarding that loss would also be covered by the expression “total income”, we would hold that in such a case it would be covered by clause (d). If that be so, the appellants were right in paying court fee of Rs.500/-. In view of that, order dated 21st January 2009”is set aside and appeal is restored to file as properly stamped.” After hearing the ld. AR we not that it is undisputed fact that the disputed amount in the instant case represents the loss. Thus respectfully following the judgment of Hon’ble Bombay High Court in the case of Gilbs Computer Limited (supra) we hold that the assessee was liable to pay a sum of Rs. 500 as fees along with its appeal. Thus in our considered view there is no defect in the appeal as far as the issue of fees is concern. Now coming to the facts of the case : 5. At the outset, it was observed that the assessee before us in the grounds of appeal