Gilbs Computer vs. ITAT (Bombay High Court)

DATE: (Date of pronouncement)
DATE: August 21, 2009 (Date of publication)

Click here to download the judgement (gilbs_computer_itat_appeal_filing_fee_in_loss_cases.pdf)

Filing Fee for appeal to ITAT in ‘assessed loss’ cases is only Rs. 500

The assessee, having been assessed to a loss of Rs. 9 crores, filed an appeal before the Tribunal. S. 253 (6) provides that if the assessed ‘total income’ is “less” than Rs. 1 lakh, a fee of Rs. 500 for filing the appeal is payable while if the income is “more”, a higher fee is payable subject to a maximum of Rs. 10,000. The Tribunal took the view that if the loss was more than Rs.1 lakh, the total income would be more than Rs.1 lakh (although negative) and a higher fee was payable on the basis that the object behind s. 253(6) was that big cases involving income of more than a particular figure, positive or negative, required more time and effort of the Tribunal to deal with and as the nature of fees was compensatory, a higher fee for a bigger case would be in consonance with the object.

On a writ petition by the assessee, HELD, reversing the order of the Tribunal:

(i) The expression “more and less” in s. 253 (6) will have to be given its natural meaning. Though “income” includes a loss (“negative income”), negative income can never be more than positive income. It will always be less.

(ii) Where an assessee is assessed to a loss, it may be said either that he has been assessed to a nil income and is permitted to carry forward the loss or that he is assessed to the loss figure. Whichever way one looks at it the assessed income is “less” than Rs. I lakh and s. 253 (a) would apply. If, on the other hand, one takes the view that to an assessee assessed to a loss clauses (a) or (b) or (c) of s. 253 cannot apply as they postulate assessment out of a positive figure than, it is only clause (d) which applies and, even so, the fee payable would be Rs.500/.

(iii) The quantum of the item in dispute is irrelevant. Only the assessed total income has to be considered.

Note: In Ajith Kumar Pandey 310 ITR 195 (Patna) it has been held that filing fees of only Rs. 500 is payable for penalty appeals after considering the contrary decision of the ITAT Special Bench in Bidyut Kumar Sett 272 ITR (AT) 75 (Kol.)

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