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Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
Before: Shri M. Balaganesh, AM & Shri S. S. Viswanethra Ravi, JM]
ORDER Per Shri M. Balaganesh, AM:
This appeal by assessee is arising out of order of CIT(A)-15, Kolkata vide Appeal No. 34/CIT(A)-15/14-15/Wd-51(3)/Kol dated 30.01.2015. Assessment was framed by ITO, Ward-51(3), Kolkata u/s. 143(3) of the Income tax Act, 1961 (hereinafter referred to as the “Act”) for AY 2010-11 vide his order dated 05.03.2013.
At the outset, it is noticed that the registry has issued a defect memo to the assessee stating that the assessee ought to have paid filing fee of Rs.10,000/- as against Rs.500/- paid by the assessee thereby resulting in deficit fee of Rs.9500/- which requires to be rectified by the assessee. The assessee gave a reply to the registry stating that the Ld. CIT(A) had not admitted the appeal by not condoning the delay and hence, in this scenario, the assessee falls under the provisions of residuary clause provided in sec. 253(6)(d) of the Act, which reads 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,- (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,
2 Bijay Kumar Shaw, AY 2010-11 (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)."
The Ld. AR also placed reliance on the following decisions in support of his contentions: (i) Decision of Hon’ble Karnataka High Court in the case of Rajakamal Polymers (P) Ltd. Vs. CIT (2007) 291 ITR 314 (Kar); (ii) V. Vasudevan Vs. ACIT (2012) 52 SOT 72 and (iii) Dr. A. Naresh Babu Vs. ITO (2010) 5 ITR 485 Accordingly, the Ld. AR argued that the assessee had paid the prescribed fee and prayed for admission of the appeal. In response to this, no arguments were advanced by the Ld. DR.
We have heard rival submissions and gone through facts and circumstances of the case. We find that there is no defect in payment of filing fee by the assessee as admittedly the case of the assessee falls under section 253(6)(d) of the act as the Ld. CIT(A) had not admitted the appeal and had not adjudicated the grounds of additions on merits. We find that the reliance placed by the Ld. AR on the decision of Hon’ble Karnataka High Court in the case of Rajakamal Polymers (P) Ltd., supra is very well founded, wherein it was held as under: “8. 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.”
3 Bijay Kumar Shaw, AY 2010-11 Respectfully following the aforesaid decision, we admit the appeal filed by the assessee before us. The assessee has raised the following grounds before us: “1. For that the Ld. CIT, Appeal was not justified in, not condoning the delay, in filing of the appeal. The delay in filing of the appeal was due to reasons beyond the assessee control and hence the same be condoned.
2. For that the Ld. CIT, Appeal was not justified in, dismissing for non prosecution. The CIT, Appeal be directed to dispose the appeal on merits as per law.”
Brief facts of the case is that the assessee is a trader in mobile accessories and also does job work for Sistema Shyam Tele Services Ltd. The return of income for AY 2010-11 was electronically filed by the assessee on 12.10.2010 declaring taxable income of Rs.7,10,630/-. The assessment was completed u/s. 143(3) of the Act dated 05.03.2013 determining the assessed income at Rs.37,76,659/- after making various additions and disallowances. There was a delay of 4½ months in filing the appeal by the assessee before the Ld. CIT(A) for which the assessee filed an affidavit stating that the assessment orders were duly handed over to their lawyer Shri P. K. Basu for preparation and filing of appeal before the ld. CIT(A). But in view of certain renovation work which were going on in the premises of the lawyer, these appeal papers got misplaced and the same were traced by the lawyer only on 20.08.2013 at which point of time parallel penalty proceedings u/s. 271(1)(c) of the Act were also in progress. The assessee rushed to the lawyer’s office after realizing that the penalty proceedings were in progress and after realizing that appeal has not been filed by its counsel. Accordingly, the appeal was ultimately filed with a delay of 4½ months before the Ld. CIT(A). The Ld. CIT(A) did not condone the delay on the ground that there was no confirmation filed from the concerned counsel of the assessee regarding the facts noted by the assessee in his affidavit. Aggrieved, the assessee is in appeal before us.
We have heard rival submissions and gone through facts and circumstances of the case. We have also gone through the affidavit filed before the Ld. CIT(A). We also find that the Ld. AR also placed on record the confirmation of the concerned counsel Shri P. K. Basu vide his letter dated 04.11.2016 wherein he had categorically admitted that due to renovation being undertaken in his office the said appeal papers were inadvertently kept in the file of another client and appeal could not be prepared by his office in time. He also 4 Bijay Kumar Shaw, AY 2010-11 admitted that in the month of August, 2013, this mistake was detected when the assessee asked for appeal acknowledgment to be filed before the AO for keeping the penalty proceedings in abeyance. He fairly admitted that it was only due to human error at his office that appeal before the Ld. CIT(A) could not be filed in time. We find that it is only because of non-confirmation of the facts stated by the assessee by the concerned counsel, the Ld. CIT(A) proceeded not to condone the delay. Since the said confirmation is very much available on record before us, we direct the Ld. CIT(A) to condone the delay and admit the appeal for adjudication and proceed to adjudicate the issues raised before him on merits. Accordingly, grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal of assessee is allowed for statistical purposes.