Appeal to Appellate Tribunal : Fees : S. 253(6) of I. T. Act 1961 : Appeal against levy of penalty : Appeal fees is Rs.500 and not based on income assessed : Tribunal calling for fees based on income assessed : Not proper.

[Dr. Ajit Kumar Pandey vs. ITAT; 310 ITR 195 (Pat)].

In respect of an appeal filed by the assessee before the
Tribunal, against levy of penalty u/s. 271 of the Income-tax Act, 1961, the
assessee had paid Rs.500 as appeal fees. The appeal was decided ex parte.
The assessee applied for restoration of the ex parte order. The
Tribunal agreed to recall the ex parte order and to decide the appeal
on merits provided the assessee furnished the deficit court fee of Rs.8,330.

The assessee challenged the order by filing a writ
petition. The Patna High Court allowed the writ petition and held as under :

“i) In the case of an appeal where the total income of
the assessee is ascertainable from the appeal itself, i.e. when the
appellant was seeking to challenge the assessment of his total income, fees
as mentioned in clauses (a), (b) and (c) would be required to be paid.

ii) Clause (d) deals with other appeals. Imposition of
penalty u/s. 271 of the Act had no connection or bearing with the total
income of the assessee. If a person aggrieved by an order imposing penalty,
approaches the Tribunal by preferring an appeal, imposition of penalty
having no nexus with the total income of the assessee, it would not be
discernible what is the total income of the appellant and accordingly such
an appeal would be covered by clause (d).

iii) The important words used in clauses (a), (b) and (c)
of sub-section (6) of section 253 are ‘total income of the assessee’.
Therefore that may not be discernible.

iv) The order of the Tribunal was liable to be set aside
and the appeal was remitted for decision on merits.”