ANDHRA PRADESH STATE ELECTRICITY BOARD Vs. INCOME TAX OFFICER
INCOME TAX APPELLATE TRIBUNAL
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R.P. Garg, Accountant Member -
(1.) THE question for determination in all these appeals is as to the fee to be paid for filing the appeal before the Tribunal under Section 253(6) of the Income -tax Act, 1961.
(2.) The issue in these appeals can be classified into four categories as follows :
I. Where the income originally assessed is more than Rs. 1 lakh but after first appellate order it is reduced below Rs. 1 lakh.
II. Where the income before set off of unabsorbed depreciation and business losses is more than Rs. 1 lakh but is reduced to nli. upon such set off.
III. Where the total income computed is a loss but that loss is more than Rs. 1 lakh.
IV. Where the total income is below Rs. 1 lakh but if agricultural income is taken into consideration it exceeds Rs. 1 lakh.
It Appeal Nos. 576 and 577/Hyd/1993 fall under Category -1. The income determined as per assessment order is Rs. 1,07,950 for asst. year 1979 -80 which is reduced to Rs. 57,950 consequent to the order of the Commissioner (Appeals). It is Rs. 1,71,740 for assessment year 1980 -81 and is reduced to Rs. 46,920. The orders which are under appeal before the Tribunal are the assessment orders wherein the income was determined at Rs. 1,07,950 and Rs. 1,71,740. The assessee's submission is that her income as modified consequent to the order of the Commissioner (Appeals) should be the determinative figure for the fee to be paid by the assessee. The contention of the revenue, on the other hand, is that it is the income as computed in the original assessment that must be the figure to determine the fee to be paid by the assessee.
(3.) SECTION 253(6) reads as under:
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 June, 1992, 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 lakh rupees or less, two hundred and fifty rupees;
(b) where the total income of the assessee computed as aforesaid in the case to which the appeal relates is more than one lakh rupees, one thousand and five hundred rupees.
On a pLaln reading of this provision, it is clear that it is the total income as computed by the Assessing Officer in the case to which the appeal relates. Therefore, the total income which is computed by the Assessing Officer must be in the case which is in appeal. The assessment order gives birth to an appeal before the first appellate authority and an appeal then comes to the Appellate Tribunal against that order in first appeal. It is, therefore, imperative that the total income computed in that order of assessment which gives rise to appeal to the Tribunal is relevant. Any modification or alteration in the income consequent to the appellate order would not be relevant. The contention of the assessee is that the order giving effect to appellate order is also an order of assessment as held by their Lordships of the Andhra Pradesh High Court in the case of Bakellte HylamLtd. v. CIT[ 1988] 171ITR 344. It is true that the order giving effect to the order of the first appellate authority is also an order of assessment, but the income determined in that order might not be the income computed by the Assessing Officer as the Assessing Officer might just be giving effect to the appellate order and there might not be application of his mind; he would be doing a ministerial work. Again, the computation of total income by the Assessing Officer must be in the case which is in appeal before the Tribunal. When the original assessment is made subject -matter of appeal before the Tribunal, it is the income that is computed in that order which is relevant and not the income as modified, revised or computed in subsequent proceedings. Furthermore, if we accept the assessee's contention, then why stop at that order giving effect to the appellate order? It should be every subsequent order including an order giving effect to the order of the Tribunal, the Commissioner under SECTION 263 or SECTION 264, a reassessment order under SECTION 147,;
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