TMI Blog2023 (2) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of Rs. 500/-, we direct assessee to deposit the differential appeal fee amount to Rs. 9,500/- on or before 6th March , 2023 with Government Treasury , and file the paid challan with Registry latest by 09th March, 2023, failing which appeal of the assessee shall stand dismissed . - ITA No.:37/Alld/2022 - - - Dated:- 21-2-2023 - Shri Vijay Pal Rao, Judicial Member And Shri Ramit Kochar, Accountant Member For the Appellant : C.A. Shri. S.K. Jaiswal For the Respondent : Shri A. K. Singh, Sr. DR ORDER PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This appeal is filed by assessee against the appellate order dated 27.09.2022 passed by ld. Commissioner of Income-tax(Appeals), NFAC, New Delhi (DIN Order No. ITBA/NFAC/S/250/2022-23/1045998109(1) )(hereinafter called the CIT ) u/s 250 of the 1961 Act, which in turn has arisen from an rectification order dated 04.08.2016 passed by ITO, Ward 1(1), Allahabad, U.P.(hereinafter called the AO ) u/s. 154 of the 1961 Act. 2. The assessee has raised following Grounds of Appeal with Income Tax Appellate Tribunal, Allahabad Bench, Allahabad, U.P. (hereinafter called the tribunal ) in memo of appeal filed in ITA no. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith tribunal , on 20.01.2023. 3c. The hearing took place before DB in open court proceedings through physical hearing mode on 03.02.2023 , when both the parties vehemently argued on the issue of appeal fee liable to be deposited for maintenance of this appeal before the tribunal keeping in view provisions of Section 253(6) of the 1961 Act. The ld. Counsel for the assessee vehemently argued that this appeal has arisen from the appellate order dated 27.09.2022 passed by ld. Commissioner of Incometax( Appeals), NFAC, New Delhi u/s 250 of the 1961 Act, which in turn has arisen from an rectification order dated 04.08.2016 passed by AO u/s. 154 of the 1961 Act. The total income of the assessee was assessed by AO vide reassessment order dated 03.03.2016 passed u/s 143(3) read with Section 147 of the 1961 Act , wherein total income assessed was to the tune of Rs.50,73,010/-, out of which income assessed by AO as long term capital gains arising on transfer of equity shares chargeable to income-tax was Rs. 39,67,163/-. The assessee filed application for rectification of mistake apparent from record , dated 10.06.2016 u/s 154 of the 1961 Act before the AO, stating that income arising from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of shares as computed by AO vide reassessment order dated 31.03.2016, to the tune of Rs. 39,67,163/- is not chargeable to income-tax keeping in view provisions of Section 10(38), while total income of the assessee was computed by the AO of the assessee to the tune of Rs. 50,73,010/- vide reassessment order dated 31.03.2016 passed u/s 143(3) read with Section 147 of the 1961 Act , and hence the case of the assessee will fall under Section 253(6)(c) of the 1961 Act as the fate of application u/s 154 filed in the instant case by the assessee has direct bearing on the computation of total income of the assesse , and hence, the appeal fee to be deposited by the assessee shall be Rs. 10,000/- while filing an appeal with tribunal , while in the instant case the assessee has only deposited an appeal fee of Rs. 500/- while filing this appeal with tribunal, and hence there is a deficiency of appeal fee to the tune of Rs. 9,500/- keeping in view provisions of Section 253(1)(c) , and prayers were made by ld. Sr. DR that this appeal should be either outrightly dismissed or otherwise the assessee be called upon to further deposit forthwith deficient appeal fee of Rs. 9,500/- . The ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rectification application filed by the assessee with the AO is reproduced hereunder: The said rectification application filed by the assessee with AO u/s 154, was dismissed by the AO vide order dated 04.08.2016 passed by the AO u/s 154 by holding that the first appeal filed by assessee with ld. CIT(A) against reassessment order dated 31.03.2016 passed by AO u/s 143(3) read with Section 147 is still pending with ld. CIT(A). The ld. AO also held on merits that the assessee has not filed any documentary evidence in support of her claim before the AO, and hence the application filed by the assessee u/s 154 stood dismissed by the AO. The rectification order dismissing rectification application as passed by the AO, is reproduced hereunder: In this case, the assessee has filed an application u/s 154 of I.T. Act, 1961 stating therein that the income arising from transfer of equity shares are not liable to be included to the total income of the assessee and requested to rectify the order passed w/s 148/143(3) dated 31.03.2016. Aggrieved from the order passed u/s 143(3) of I.T. Act, 1961, the assessee filed an appeal before the C.I.T.(A) vide receipt no 000062 dated 26/04/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al fee as stipulated under Section 253(6)(c) amounting to Rs. 10,000/- is to be paid while filing this instant appeal with tribunal , keeping in view facts and circumstances of this appeal. Before, we proceed further, it will be relevant to reproduce the provision of Section 253(6) of the 1961 Act dealing with the appeal fee payable by tax-payer , while filing appeal with tribunal, which reads as under: Appeals to the Appellate Tribunal. 253(1) **** **** **** **** **** **** **** **** (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) where 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 afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the assessee computed by the AO vide reassessment order u/s 147 read with Section 143(3) , would have reduced to the extent of relief granted by the aforesaid authorities. Thus, this rectification application filed by the assessee u/s 154 had a direct bearing on the computation of total income of the assessee as computed by the AO vide reassessment order passed u/s 143(3) read with Section 148, and hence the residual clause (d) of Section 253(6) shall not have any application, but rather Section 253(6)(a) to (c) of the 1961 Act have direct applicability as it deals with computation of total income of the assessee by the AO to which this appeal relates, and since total income computed by the AO was Rs. 50,73,010/- , Relevant Section under which appeal fee shall be payable will be Section 253(6)(c) , and hence appeal fee of Rs. 10000/- shall be payable by the assessee. It is altogether a different matter that rectification application filed by the assessee stood dismissed by the AO, for lack of evidences and also that appeal against assessment order passed u/s 143(3) read with Section 147 is still pending before ld. CIT(A) . Similarly, if we grant relief by allowing appeal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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