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TMI Blog2010 (6) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... while treating the same as capital receipt adjusted the subsidy amount against the cost of factory building and plant and machinery and reduced the cost of those assets and granted depreciation on such reduced value. Therefore, in effect the assessee had incurred a loss in respect of the differential amount of depreciation. This issue was raised by the assessee before the Assessing Officer in a petition filed under section 154. The rectification petition was dismissed by the assessing authority on the ground of limitation. The Commissioner of Income-tax (Appeals) also passed a similar order. Aggrieved by the same, the assessee filed the second appeal before the Tribunal. While filing the second appeal before the Tribunal the assessee remi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in section 253(6) which is extracted below : (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of other matters the filing fee is Rs. 500. In the present case, the appeal filed by the assessee is against the assessment order itself even though the appeal has been routed under section 154. The contention of the assessee is that the subsidy amount received by the assessee should not be reduced from the cost of the assets and depreciation should be granted on the gross block of the assets. If the appeal of the assessee is to be allowed, the assessed income would be reduced to the extent of amount of differential depreciation. Therefore, even though the appeal originated out of proceedings under section 154, in substance, the appeal is against the assessment order and most particularly, it is a quantum appeal. The appeal aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that event the language of sub-section (6)(a) would be attracted. If the total income can be considered even to be a loss then the absence of it will not be covered by either clause (a), (b) or (c) of sub-section (6). It will be clause (d) of sub-section (6) which will apply. The expression `total income' is defined in section 2(45) of the Act to mean the total amount of the income referred to in section 5, computed in the manner laid down in the Act. It would thus be clear that for clause (c) of section 253(6) to apply the total income assessed has to be in excess of Rs. 2,00,000. The use of the words `more than' would also indicate that it has to be a positive figure in excess of Rs.2,00,000. What has to be determined is the purpose f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stulate assessment of a positive figure, only clause (d) could apply and, even so, the fee payable would be Rs. 500. The petitioner was right in paying court fee of Rs. 500." Even though the case was considered in a different context, the court has analysed the scheme of section 253(6) and has held that it is that figure of the assessed income that determines the quantum of fee payable. Therefore, in the facts and circumstances of the case, we hold that the assessee is liable to pay a filing fee of Rs. 10,000 in respect of the appeal filed by it. The assessee has already remitted Rs. 500. Thus there is a deficiency of Rs. 9,500. The registry is justified in issuing the defect memo. The assessee is directed to pay the balance filing fee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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