2009 (7) TMI 113 - HC - Income Tax

Appeal to appellate tribunal payment of court fee In making the assessment AO disallowed the petitioner s claim for interest to the extent of Rs. 11,98,97,222 CIT(A) had dismissed the petitioner s appeal Appeal filed before ITAT in accordance with section 253 and consistent with its stand that the requisite fee payable was Rs. 500, the Form 36 that was filed in the registry was accompanied by a challan evidencing payment of a fee of Rs. 500 - The registry by its letter dated August 25, 2009, communicated the defect in the memo of appeal inasmuch as the appeal fee paid was less by Rs. 9,500 held that - the expression more and less will have to be given the natural meaning. It can only be more than a negative income even if the expression income is held to be both positive and negative income. Negative income cannot be more. It will always be less - , the appellants were right in paying court fee of Rs. 500 order rejecting the appeal set aside appeal restored.

Summary

Issues Involved:
1. Determination of court fees payable by the assessee in preferring an appeal to the Appellate Tribunal under section 253(6) of the Income-tax Act, 1961.
2. Interpretation of "total income" in the context of court fees.
3. Applicability of various clauses under section 253(6) in cases of assessed loss.
4. Jurisdiction of the High Court in exercising writ jurisdiction in matters where an appeal is available.

Issue-wise Detailed Analysis:

1. Determination of court fees payable by the assessee in preferring an appeal to the Appellate Tribunal under section 253(6) of the Income-tax Act, 1961:
The principal question was the amount of court fees payable by the assessee when filing an appeal under section 253(6) of the Act. The petitioner argued that the requisite fee was Rs. 500, consistent with the claim that the total income was negative (a loss). The Tribunal dismissed the appeal for non-payment of the additional court fee, relying on its earlier decision that higher fees were required for cases involving larger amounts, whether positive or negative.

2. Interpretation of "total income" in the context of court fees:
The court examined the legislative history and amendments to section 253(6). Initially, a fixed fee was required, but later amendments introduced a graded system based on the concept of "ability to pay." The court concluded that "total income" includes both positive and negative income. However, the language of section 253(6) uses terms like "more than" and "less," which indicate positive figures. Therefore, in cases of assessed loss, the fee payable should be Rs. 500 as per clause (a) or (d) of section 253(6).

3. Applicability of various clauses under section 253(6) in cases of assessed loss:
The court clarified that clauses (a), (b), and (c) of section 253(6) apply to positive income figures. In cases of assessed loss, clause (d) would apply, resulting in a court fee of Rs. 500. The court rejected the Tribunal's interpretation that higher fees apply to larger negative figures, emphasizing that negative income cannot be "more" but always "less."

4. Jurisdiction of the High Court in exercising writ jurisdiction in matters where an appeal is available:
The respondent-Revenue contended that the court should not exercise its writ jurisdiction because an appeal to the High Court was available. However, the court decided to exercise its jurisdiction to address the misinterpretation of section 253(6) by the Tribunal, ensuring that the correct legal principles were applied.

Conclusion:
The court concluded that the petitioner was correct in paying a court fee of Rs. 500. The Tribunal's order dated January 21, 2009, was set aside, and the appeal was restored as properly stamped. The court emphasized that the expression "total income" in section 253(6) should be interpreted naturally, and in cases of assessed loss, clause (d) applies, resulting in a fee of Rs. 500. Rule made absolute accordingly, with no order as to costs.