Appeal to Appellate Tribunal : Fees : S. 2(45), S. 5 and S. 253(6) of Income-tax Act, 1961 : A.Y. 2003-04 : Total income determined at negative figure : Fees of Rs.500 alone is payable.

[Gilbs Computer Ltd. v. ITAT, 317 ITR 159 (Bom.)]

For the A.Y. 2003-04 the assesse’s total income was
assessed at a loss of Rs.7,18,78,768. While filing appeal before the Tribunal
u/s.153 of the Income-tax Act, 1961 the assessee paid appeal fees of Rs.500.
The registry of the Tribunal communicated the defect inasmuch as the appeal
fee paid was less by Rs.9,500 and called upon the petitioner to rectify the
defect within 10 days. The petitioner did not pay the additional amount.
Therefore the Tribunal dismissed the petitioner’s appeal as unadmitted.

The Bombay High Court allowed the writ petition filed by
the assessee challenging the order of the Tribunal and held as under :

“(i) The expressions ‘more’ or ‘less’ in S. 253(6) of the
Act have to be given their natural meaning. Negative income cannot be
‘more’. It will always be less. In that event the language of Ss.(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 Ss.(6). It will be clause (d) of Ss.(6) which will apply.

(ii) The petitioner was not obliged to pay the fee in
excess of Rs.500. The petitioner had been admittedly assessed to loss. The
income computed was less than Rs.1,00,000 and, therefore, clause (a) of S.
253(6) would apply.

(iii) If on the other hand, one took the view that clause
(a), (b) or (c) would not apply as they postulate assessment of a positive
figure, only clause (d) would apply and, even so, the fee payable would be
Rs.500. The petitioner was right in paying court fee of Rs.500.”