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TMI Blog2002 (6) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... e confirmation of penalty levied under section 271(1)(c). The penalties levied for concealment of income arc as under: Assessment year Nature ol Penalty Quantum of Penalty 1993-94 U/s. 271(i)(c) Rs. 45,114 1994-95 -do- Rs. 49,620 1995-96 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; -do- Rs. 500 Rs. 1000 2. The matter was placed before Hon'ble Vice President for orders as to whether the fee paid may be accepted and the appeal may be treated to be in order or the fee should be determined as calculated above so that the assessee may be directed to make good the shortfall. The Hon'ble Vice President has directed to place the matter before the Bench so that the issue may be adjudicated upon and decided. Accordingly the aforesaid appeals were fixed for hearing before us on 5-2-2002 and we have heard the arguments of both the sides. 3. The contention of ld. A.R., Shri K. Gopal is that the assessee has challenged only the levy of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing fee of Rs. 500 respectively for all the four assessment years. According to assessee the fee has been correctly deposited as per section 253(6)(a) of the Act. As per the newly substituted section 253(6) by the Finance (No. 2) Act, 1998 subsequently amended w.e.f. 1-6-1999 by Finance Act, 1999 the structure of fee has been changed and it has been prescribed that an appeal to the Appellate Tribunal should be accompanied by a fee of: (a) Rs. 500 where the total income of the assessee as computed by the Assessing Officer, in the case to which the appeal relates is Rs. 1,00,000 or less; (b) Rs. 1,500 where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is Rs. 1,00,000 but not more than Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, proposed to provide a fee of Rs. 250 for appeal before the Commissioner (Appeals) and Rs. 500 for appeals before the Appellate Tribunal for the residuary group of appeals which cannot be linked with assessed income or assessed net wealth. The proposed amendments shall take effect on the 1-6-1999." 6. C.B.D.T Circular No. 779 dated 14-9-1999, relevant page-41, para 54 with the headlines "Rationalisation of provisions relating to reduction of litigation and other allied issues" is also worth mention. This para has explained the reasons for introduction of clause (d) in section 253(6). On reading of the memorandum explaining the provisions of Finance Bill, 1999 and the Circular of CBDT it is clear that if subject-matter of an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to any tax payable by him, such person shall pay by way of penalty a sum which shall be less than the amount of tax sought to be evaded but which shall not exceed three timers the amount of tax sought to be evaded. Thus the levy of penalty is based on the tax sought to be evaded and not based on the total income determined by Assessing Officer. A reading of section 271(1)(c) makes it clear that the quantum of penalty cannot be linked with the assessed income. Therefore, a conclusion be drawn that the subject-matter of the appeal is not linked with the assessed income and, therefore, the filing fee payable should be governed by clause (d) of sub-section (6) of section 253. Moreover, clauses (a), (b) and (c) have particularly referred the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s assessable. Rejecting the plea of the assessee all the penalties have been confirmed in first appeal. 9. After hearing both the parties and on the basis of the material placed before us we are of the opinion that no penalty for concealment should be imposed on the assessee. We have perused the assessment order of all the years under appeal which are identical on facts. The assessee contended before the Assessing Officer during the assessment proceedings that it had decided to show the profit on completion of project. It was stated that since during the years under assessment the project was in progress and was not complete the assessee had shown "work in progress" in P&L Account. It was recorded that in subsequent years the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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