{"id":174508,"date":"2009-07-29T00:00:00","date_gmt":"2009-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/formerly-gold-fish-computers-p-vs-income-tax-appellate-tribunal-on-29-july-2009"},"modified":"2018-06-30T14:55:30","modified_gmt":"2018-06-30T09:25:30","slug":"formerly-gold-fish-computers-p-vs-income-tax-appellate-tribunal-on-29-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/formerly-gold-fish-computers-p-vs-income-tax-appellate-tribunal-on-29-july-2009","title":{"rendered":"Formerly Gold Fish Computers P. … vs Income-Tax Appellate Tribunal on 29 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Formerly Gold Fish Computers P. … vs Income-Tax Appellate Tribunal on 29 July, 2009<\/div>\n
Bench: F.I. Rebello, J. H. Bhatia<\/div>\n
                                      1\n\n    mpt\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                \n                 ORDINARY ORIGINAL CIVIL JURISDICTION\n                     WRIT PETITION NO.1021 of  2009\n\n\n\n\n                                                        \n    Gilbs Computer Limited\n\n\n\n\n                                                       \n    (Formerly Gold Fish Computers P. Ltd)\n    a company incorporated under the \n    Companies Act, 1956 and having its \n    registered office at 121, Radha Bhuvan,\n\n\n\n\n                                      \n    1st floor, Nagindas Master Road,  \n    Fort, Mumbai 400 023. ig                            ..  Petitioner\n                        \n     versus\n\n\n    1.   Income-tax Appellate Tribunal,\n        \n\n    Mumbai  Bench having its office at\n    Old C.G.O. Building, 4th floor,\n     \n\n\n\n    101 Maharshi Karve Road,\n    Mumbai 400 020                                   \n\n    2.  Assistant Commissioner of Income-tax\n\n\n\n\n\n    Central Circle-40, Mumbai having its\n    office at Aayakar Bhavan, 6th floor,\n    Maharshi Karve Road,\n    Mumbai 400 020.\n\n\n\n\n\n    3.   Union of India, through the Secretary\n    Ministry of Finance, North Block, \n    New Delhi - 110 001.                     ..  Respondents.\n\n\n                                      ...\n<\/pre>\n
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\n                                             2<\/span><\/p>\n
    Mr. P.J. Pardiwala, Sr.Counsel with Mr.Atul K. Jasani and Ms.Vandana
\n    Rawale for the petitioner.\n<\/p>\n
    Mr.P. S. Sahadevan for the respondents.\n<\/p>\n
                                     CORAM : FERDINO. I. REBELLO AND
\n                                                  J.H. BHATIA,  JJ<\/p>\n
                                     DATED : 29 th July 2009.\n<\/p>\n
    ORAL JUDGEMENT (FERDINO I. REBELLO, J)<\/p>\n
    1.    Rule.  Heard forthwith.\n<\/p>\n
    2.    The   principal   question   that   arises   for   determination   in   this <\/p>\n
    petition is what are the court fees payable by the assessee in preferring <\/p>\n
    an appeal to Appellate Tribunal  under section 253(6) of the  Income <\/p>\n
    Tax Act which hereinafter shall be referred to as “the Act”.  On behalf <\/p>\n
    of the petitioner, learned counsel has submitted as under:-\n<\/p>\n
    3.    The petitioner had filed its return of income for assessment year <\/p>\n
    2003-04 on 1st December 2003 in which return it claimed that it was <\/p>\n
    entitled to carry forward a loss of Rs.19,24,93,890\/-.  The Petitioner’s <\/p>\n
    assessment was completed under section 143(3) by Respondent no.2 <\/p>\n
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\n                                              3<\/span><\/p>\n
    by his order dated 17th February 2006 by which order Respondent no.2 <\/p>\n
    determined   the   business   loss   incurred   by   the   Petitioner   at   Rs.\n<\/p>\n
    7,18,78,768\/-   and   the   long-term   capital   loss   at   Rs.1,82,19,212\/-\n<\/p>\n
    aggregating   Rs.9,00,97,980.     In   making   the   assessment   Respondent <\/p>\n
    No.2 disallowed the Petitioner’s claim for interest to the extent of Rs.\n<\/p>\n
    11,98,97,222\/-.  A copy of the said order is annexed to the petition as <\/p>\n
    Exhibit”A” and is to be found at pages 21 to 24.\n<\/p>\n
    4.<\/p>\n
          As the CIT (Appeals) had dismissed the Petitioner’s appeal the <\/p>\n
    Petitioner preferred an appeal to Respondent no.1 in accordance with <\/p>\n
    section 253 and consistent with its stand that the requisite fee payable <\/p>\n
    was   Rs.500\/-   the   form   36   that   was   filed   in   the     registry   was <\/p>\n
    accompanied by a challan evidencing payment of a fee of Rs.500\/-.\n<\/p>\n
    5.    The registry of Respondent no.1, by its letter dated 25th  August <\/p>\n
    2009, communicated the defect in the Memo of Appeal in as much as <\/p>\n
    the appeal fee paid was less by Rs.9500\/- and invited the Petitioner’s <\/p>\n
    attention to a decision of the Tribunal reported in 49 ITD 552.   The <\/p>\n
    Petitioner was called upon to rectify the defect within ten days from <\/p>\n
    the date of receipt of the letter.    According to the Petitioner as there <\/p>\n
    was no shortfall in payment of the fee it did not pay the additional <\/p>\n
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\n                                                4<\/span><\/p>\n
    amount demanded and, hence,  the matter was fixed for hearing by <\/p>\n
    Respondent   no.1.     By  the   impugned  order  dated  21st  January   2009 <\/p>\n
    Respondent no.1 has dismissed the Petitioner’s appeal as  unadmitted <\/p>\n
    as   according   to   Respondent   no.1   the   Petitioner   had   not   paid   the <\/p>\n
    requisite fee and the deficiency was not met despite an opportunity <\/p>\n
    being given.  In coming to its conclusion Respondent no.1 relied upon <\/p>\n
    its   earlier   decision   in   the   case   of   Andhra   Pradesh   State   Electricity <\/p>\n
    Board Vs. ITO 49 ITD 552 where the Tribunal had taken the view that <\/p>\n
    if  the  loss  determined  by the Assessing  Officer was more  than Rs.1 <\/p>\n
    lakh   the   total   income   would   be   more   than   Rs.1   lakh   (although <\/p>\n
    negative and the fee payable would be Rs.1,500\/- and not Rs.250\/- (as <\/p>\n
    the law then stood).  According to Respondent no.1 the object behind <\/p>\n
    section 253(6) appeared to be that big cases involving income of more <\/p>\n
    than a particular figure, positive or negative, required more time and <\/p>\n
    effort   of   the   Tribunal   to   deal   with.     The   nature   of   fees   being <\/p>\n
    compensatory a higher fee for a bigger case would be in consonance <\/p>\n
    with the object.\n<\/p>\n
    6.     It is therefore submitted that considering the section,  the court <\/p>\n
    fees   is   payable   on   the   total   income   as   computed   by   the   Assessing <\/p>\n
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\n                                                  5<\/span><\/p>\n
    Officer,   and   in   the   instant   case,   there   being   a   loss,   the   court   fees <\/p>\n
    payable   will  be   Rs.500\/-   in   terms  of  section   253(A).     The   Tribunal <\/p>\n
    therefore, on its administrative side was wrong in rejecting the appeal <\/p>\n
    for failure to pay proper court fees.\n<\/p>\n
    7.     On the other hand, on behalf of the respondent, revenue, it is <\/p>\n
    submitted that   this court should not exercise its writ jurisdiction, as <\/p>\n
    an appeal shall lie to the High Court from every order passed by the <\/p>\n
    Appellate Tribunal.  As an appeal is  an effective and efficacious legal <\/p>\n
    remedy, this court ought not to exercise its extra ordinary jurisdiction <\/p>\n
    and consequently petition on this  ground alone must be dismissed.\n<\/p>\n
    .      It is then contended that total income means “the total amount <\/p>\n
    of income referred to section 5 computed in the manner laid down in <\/p>\n
    the Act.  The computation process may result in positive income or loss <\/p>\n
    as   happened   in   the   case   of   the   petitioner.     The   total   income   was <\/p>\n
    computed   at   Rs.7,18,78,768\/-   (loss).     That   will   be   the   basis   of <\/p>\n
    payment of fees in appeal proceedings.  There is therefore no infirmity <\/p>\n
    in   the   finding   by   the   Tribunal   but   as   the   income   goes   up   the   fees <\/p>\n
    accordingly   are higher. Similarly, when the loss  goes up, the fees will <\/p>\n
    also go on increasing.\n<\/p>\n
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\n                                             6<\/span><\/p>\n
    8.   For the purpose of deciding the controversy, we may gainfully <\/p>\n
    refer to the provisions of section 253(6) which reads as under:-\n<\/p>\n
         253.   Appeals to the Appellate Tribunal.\n<\/p><\/blockquote>\n
                   (6) An appeal to the Appellate Tribunal shall be in the
\n         prescribed form and shall be verified in the prescribed manner
\n         and shall, in the case of an appeal made, on or after the 1st <\/p>\n
         day of October, 1998, irrespective of the date of initiation of
\n         the assessment proceedings relating thereto, be accompanied <\/p>\n
         by a fee of,<\/p>\n<\/blockquote>\n
                (a) where the total income of the assessee as computed by
\n         the Assessing Officer, in the case to which the appeal relates, is
\n         one hundred thousand rupees or less, five hundred rupees,<\/p>\n<\/blockquote>\n
                   (b) where the total income of the assessee, computed as
\n         aforesaid, in the case to which the appeal relates is more than
\n         one hundred thousand rupees but not more than two hundred <\/p>\n
         thousand rupees, one thousand five hundred rupees,<\/p>\n<\/blockquote>\n
                 (c) where the total income of the assessee, computed as <\/p>\n
         aforesaid, in the case to which the appeal relates is more than
\n         two  hundred  thousand   rupees, one   per   cent  of   the   assessed
\n         income, subject to a maximum of ten thousand rupees,<\/p>\n<\/blockquote>\n
                 (d) where the subject matter of an appeal relates to any
\n         matter, other than those specified in clauses (a), (b) and (c),
\n         five hundred rupees:]<\/p>\n
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\n                                                 7<\/span><\/p>\n
           Provided  that no such fee shall be payable in the case of an
\n           appeal   referred   to   in   sub-section   (2)   or   a   memorandum   of <\/p>\n
           cross-objections referred to in sub-section (4).\n<\/p><\/blockquote>\n
    9.     The  history of the provision may now be considered.  Section 33 <\/p>\n
    of the Indian Income-tax, 1922 empowered an assessee aggrieved by <\/p>\n
    an order passed by the Appellate Assistant Commissioner to appeal to <\/p>\n
    the Tribunal.  Sub-section of section 33 provided that an appeal to the <\/p>\n
    Tribunal shall be in the prescribed form and shall be verified in the <\/p>\n
    prescribed manner and shall, in the case of an appeal preferred by the <\/p>\n
    assessee, be accompanied by a fee of Rs.100\/-.  When the Income-tax <\/p>\n
    Act, 1961 was enacted, the requirement to pay a fee for preferring an <\/p>\n
    appeal to the Tribunal was  found in sub-section (6) of section 253.  As <\/p>\n
    initially inserted it required the Memo of Appeal to be accompanied by <\/p>\n
    a fee of Rs.100\/- which fee was increased to Rs.125\/- by the Taxation <\/p>\n
    Laws (Amendment) Act, 1970 with effect from 1st April 1971.  Section <\/p>\n
    253(6) was thereafter amended once again and the quantum of the fee <\/p>\n
    was increased to Rs.200\/- by the Finance Act, 1981.\n<\/p>\n
    10.    The Finance   Act, 1992 changed the manner of computing the <\/p>\n
    fee   and  it   was   provided   that   if  the   total   income   of   the   assessee   as <\/p>\n
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\n                                               8<\/span><\/p>\n
    computed   by   the   Assessing   Officer   in   the   case   to   which   the   appeal <\/p>\n
    relates is Rs. One lakh or less the fee payable would be Rs.1,500\/-.\n<\/p>\n
    The circular explaining the provisions of the Finance Act, 1992 (see <\/p>\n
    198   ITR(St.)   @   50)   being   Circular   No.636   dated   31st  August   1992 <\/p>\n
    states thus:-\n<\/p>\n
                 “52 – The Finance Act has amended section 253 <\/p>\n
                 enhancing   the   fee   to   be   paid   for   filing   appeals <\/p>\n
                 before the Income-tax Appellate Tribunal.   Under <\/p>\n
                 the pre amended provisions of sub-section (6), an <\/p>\n
                 appeal   to   the   Appellate   Tribunal   shall   be   in   the <\/p>\n
                 prescribed format and shall be accompanied by a <\/p>\n
                 fee of Rs.200\/-.  After the amendment, the fee will <\/p>\n
                 be Rs.250\/-, where the total income computed by <\/p>\n
                 the   Assessing   Officer   is   upto   Rs.1   lakh   and   Rs.<\/p><\/blockquote>\n
                 1,500\/-   in   cases   where   the   total   income   as   so <\/p>\n
                 computed   is   more   than   Rs.1   lakh.     The   former <\/p>\n
                 type of cases would include cases where the total <\/p>\n
                 income   computed   by   the   Assessing   Officer   is   a <\/p>\n
                 negative figure”.\n<\/p><\/blockquote>\n
    11.    The   Finance   (No.2)   act,   1998   once   again   amended   section <\/p>\n
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\n                                                 9<\/span><\/p>\n
    253(6)   and   it   was   provided   that   if   the   total   income   was   less   than <\/p>\n
    Rs.One   lakh,   the   fee   payable   would   be   Rs.500\/-.     However,   if   the <\/p>\n
    assessed total income was more than Rs.One lakh but no more than <\/p>\n
    Rs.Two lakhs, the fees payable would be Rs.1,500\/- and if the assessed <\/p>\n
    total income was more than Rs.Two lakhs the fee payable would be <\/p>\n
    one   percent   of   the   assessed   income   subject   to   a   maximum   of   Rs.\n<\/p>\n
    10,000\/-.     There   was   no   provision   similar   to   clause   (d),   as   it   now <\/p>\n
    stands, in the amended provision.  The object behind the insertion of <\/p>\n
    the   said   provision   was   that   the   existing     scale   of   fees   was   not   a <\/p>\n
    deterrent   for   filing   of   a   large   number   of   unnecessary   appeals   thus <\/p>\n
    slowing down the disposal of the appeals and, hence, it was decided to <\/p>\n
    enhance the limit.\n<\/p>\n
           Section 253(6)   was once  again amended by the Finance Act, <\/p>\n
    1999   and   clause   (d)   was   inserted   in   sub-section   (6).     The   object <\/p>\n
    behind the amendment was explained in Circular No.779 dated 14th <\/p>\n
    September 1999 as under:-\n<\/p>\n
                  “The Finance (No.2) Act, 1998 introduced a scale
\n                  of fees for filing appeals before the CIT (Appeals)
\n                  and   also   enhanced   the   existing   scale   of   fees
\n                  payable   before   the   Appellate   Tribunal   under <\/p>\n
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\n                                              10<\/span><\/p>\n
                 various direct tax acts.  The fee payable under the
\n                 Income-tax Act both before the CIT (Appeals) and <\/p>\n
                 the Appellate Tribunal is relatable to the assessed
\n                 income.  However, appeals are also filed on issues <\/p>\n
                 such   as   TDS   defaults,   non-filing   of   returns,   etc.
\n                 which might not have any nexus with the assessed
\n                 income.  The Act, therefore, has amended section <\/p>\n
                 249 of the Income-tax Act to provide a fee of Rs.
\n                 250\/-   for   appeals   before   the   CIT   (Appeals)   and <\/p>\n
                 Rs.500\/- for appeals before the Appellate Tribunal
\n                 for a residuary group of appeals which cannot be <\/p>\n
                 linked with the assessed income.”\n<\/p><\/blockquote>\n
    12.   The legislative history, therefore, indicates that initially a fee <\/p>\n
    at   a   fixed   rate   was   payable.     Thereafter   a   graded   system   of <\/p>\n
    payment of fees was introduced on the concept of “ability to pay”\n<\/p>\n
    and, therefore, an assessee to a higher income was obliged to pay <\/p>\n
    a   higher   fee   irrespective   of   the   quantum   involved   in   the   issue <\/p>\n
    raised in the appeal.   This is borne out by the language used in <\/p>\n
    section   253(6)   and   also   by   the   fact   that   when   the   law   was <\/p>\n
    amended and a graded scale of fees was introduced having regard <\/p>\n
    to the assessed income the Legislature was aware that when the <\/p>\n
    fee that was payable was to be calculated based on the amount <\/p>\n
    involved  in  dispute in  appeal  a suitable  provision   to   that  effect <\/p>\n
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\n                                             11<\/span><\/p>\n
    was made.   For example under Schedule 1 of the Bombay Court <\/p>\n
    Fees Act 1959 article 16 prescribed the fee payable on a reference <\/p>\n
    application under section 256(2).  The fee was one half of the ad <\/p>\n
    valorem   fee   leviable  on   the  amount  in   dispute.     Likewise   a   fee <\/p>\n
    payable when an appeal is preferred under section 260A is in term <\/p>\n
    of   Article   16A   is   to   be   computed   having   regard   to   the   amount <\/p>\n
    disputed in appeal.\n<\/p>\n
    13.<\/p>\n
          If we therefore trace the  legislative history,  it  is clear that <\/p>\n
    court fees is based on total income of the assessee.   Higher the <\/p>\n
    total income more the court fees payable.   The only question is <\/p>\n
    when   the   income   is   negative   whether   the   expression   “total <\/p>\n
    income”   should   also   be   considered   to   be   the   loss.     Learned <\/p>\n
    counsel for the revenue has placed before us the judgment of the <\/p>\n
    Supreme   Court.     The   Supreme   Court   by   judicial   interpretative <\/p>\n
    process has held that income would include both profit and loss.\n<\/p>\n
    The question  however for   consideration  is the language of  the <\/p>\n
    provision.  As an illustration in section 253(6)(a),  the words used <\/p>\n
    as “one hundred thousand rupees or less.   In (b), the language <\/p>\n
    used is “more than one hundred thousand rupees but not more <\/p>\n
    than two hundred thousand rupees and in (c) it is more than two <\/p>\n
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\n                                             12<\/span><\/p>\n
    thousand   rupees.     In   so   far   as   (a)   is   concerned,   therefore,   the <\/p>\n
    expression   used   “one   hundred   thousand   rupees   or   less;   in   (b) <\/p>\n
    more than and  in (c) more than.    What does  these  expressions <\/p>\n
    “more   or   less”   indicate?     In   Concise   Oxford   Dictionary,   Tenth <\/p>\n
    Edition “more” means greater or additional amount or degree.  In <\/p>\n
    Webster   Universal   Dictionary,   “more”   means   greater   in   number, <\/p>\n
    size,   amount,   degree   quantity   and\/or   a   greater   or   additional <\/p>\n
    quantity, amount, portion, number etc.   In the Law Lexicon the <\/p>\n
    expression “more” greater in amount, extent, number or degree.\n<\/p>\n
    Considering   this dictionary meaning it would be clear that  the <\/p>\n
    word “more” has been understood to means greater or additional.\n<\/p>\n
    Similarly,   the   word   ‘less’   in   Concise   Oxfort   Dictionary   has   been <\/p>\n
    explained as, smaller  amount of, fewer in number,  to  a smaller <\/p>\n
    extent.  Can  therefore the language  used in sub-clauses (b) and <\/p>\n
    (c) of section 256  be read in the context of a loss which has been <\/p>\n
    suffered.\n<\/p>\n
    14.   Our attention was invited to the judgements of the Supreme <\/p>\n
    Court   in   Commissioner   of   Income   Tax   (Central)   Delhi     Vs. <\/p>\n
    Harprasad & Co. P. Ltd.   1975(99), ITR 118 in Commissioner of <\/p>\n
    Income Tax Vs. J.H. Gotla & Co. 156 ITR 323, and Commissioner <\/p>\n
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\n                                            13<\/span><\/p>\n
    of   Income   Tax   Vs.   P.   Doraiswamy   Chetty   183   ITR   159.     In   our <\/p>\n
    opinion, reliance on the same is completely misplaced.\n<\/p>\n
          In   the   first   decision   the   Supreme   Court   had   to   consider <\/p>\n
    whether an assessee was entitled to set off a capital loss that was <\/p>\n
    incurred by it in a year when capital gains were not chargeable <\/p>\n
    against a capital gain that arose to it in a year when capital gains <\/p>\n
    became chargeable.   It is in that context that the Supreme Court <\/p>\n
    observed at page 124 of the report that the words “income” or <\/p>\n
    “profits and gains” should be understood as including losses also, <\/p>\n
    so that, in one sense “profits and gains” represent “plus income”\n<\/p>\n
    whereas losses represent “minus income”.  In other words loss is a <\/p>\n
    negative profit and as both positive and negative profits are of a <\/p>\n
    revenue character both must enter into computation wherever it <\/p>\n
    becomes   material   in   the   same   mode   of   taxable   income.     It   is <\/p>\n
    submitted that  the observations made by the  Supreme  Court as <\/p>\n
    aforesaid   must   be   confined   to   the   issue   which   the   Court   was <\/p>\n
    considering and the said decision would in no manner affect the <\/p>\n
    interpretation   to   be   placed   on   the   words   “total   income”   as <\/p>\n
    appearing in section 253(6).\n<\/p>\n
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\n                                            14<\/span><\/p>\n
          In CIT Vs. J.H. Gotla 156 ITR 323 the assessee was claiming <\/p>\n
    that the loss incurred by him in an earlier previous year from a <\/p>\n
    business   carried   on   by   him   should   be   permitted   to   be   carried <\/p>\n
    forward and set off against the income that arose to his wife and <\/p>\n
    minor children which was clubbed with his income.   The case of <\/p>\n
    the revenue was that such set-off was not permitted as the set-off <\/p>\n
    was permissible only against the income of a business, profession <\/p>\n
    or vocation carried on by the assessee in that year.  The Supreme <\/p>\n
    Court rejected this argument and held that it was permissible to <\/p>\n
    set-off the loss.  In so doing it observed at page 338 of the report <\/p>\n
    that “it can be accepted without much doubt that income would <\/p>\n
    include loss”.  But from this observation it does not follow that the <\/p>\n
    total income assessed in so far as the Petitioner is concerned is in <\/p>\n
    a sum in excess of Rs. Two hundred thousand so as to bring its <\/p>\n
    case within the scope of clause (c).\n<\/p>\n
          The   last   decision   of   the   Supreme   Court   in   CIT   Vs.   P.\n<\/p>\n
    Doraiswamy 183 ITR 559 merely follows the principle laid down <\/p>\n
    in Gotla’s case.  The Supreme Court had to consider whether the <\/p>\n
    assessee was entitled to carry forward to the subsequent years not <\/p>\n
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\n                                              15<\/span><\/p>\n
    only his share but also the share of loss of his wife from a firm in <\/p>\n
    which both were partners.  The revenue was of the view that the <\/p>\n
    clubbing   provision   would   apply   only   to   income   and   not   a   loss <\/p>\n
    which contention was rejected by the High Court and on further <\/p>\n
    appeal by the Supreme Court.  This decision, therefore, also does <\/p>\n
    not throw any light on the issue that this Hon’ble Court has to <\/p>\n
    consider.\n<\/p>\n
    15.<\/p>\n
           In our opinion,  on the plain interpretation of section 253(6) <\/p>\n
    there can be no doubt that the petitioner was not obliged to pay <\/p>\n
    the fee in excess of Rs.500\/-. The words ‘less and more’ must be <\/p>\n
    given the ordinary meaning.  In the instant case, the petitioner has <\/p>\n
    been admittedly assessed to loss.   In such a case, there are two <\/p>\n
    possible ways of determining what is the total income computed <\/p>\n
    by the Assessing Officer.          The   first   is   that   the   Petitioner   is <\/p>\n
    assessed to a nil income and has been permitted to carry forward <\/p>\n
    a   loss   that   is   determined   or   secondly   that   the   Petitioner   is <\/p>\n
    assessed to an aggregate loss of Rs.9,00,97,980\/-  Whichever way <\/p>\n
    one looks at it the income computed by Respondent No.2 is less <\/p>\n
    than Rs. One hundred thousand and, therefore, clause (a) would <\/p>\n
    apply.     If,   on   the   other   hand,   one   takes   the   view   that   as   the <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:50:32 :::<\/span>
\n                                             16<\/span><\/p>\n
    Petitioner   is   assessed  at  a  loss   clauses   (a)   or  (b)  or  (c)   cannot <\/p>\n
    apply as they postulate assessment out of a positive figure than, it <\/p>\n
    is   only   clause   (d)   which   applies   and,   even   so,   the   fee   payable <\/p>\n
    would be Rs.500\/-.  In any view of the matter it can never be said <\/p>\n
    that   the   Petitioner’s   case   fall   within   clause   (c)   as   held   by <\/p>\n
    Respondent no.1.  For clause (c) to apply the total income of the <\/p>\n
    assessee computed by the Assessing Officer has to be more than <\/p>\n
    Rs.   Two   hundred   thousand.     The   expression   “total   income”   is <\/p>\n
    defined in section 2(45) of the Act to mean the total amount of the <\/p>\n
    income   referred   to   in   section   5,   computed   in   the   manner   laid <\/p>\n
    down in the Act.  It would thus be clear that in order for clause (c) <\/p>\n
    to apply the total income assessed has to be in excess of Rs. Two <\/p>\n
    hundred thousand.  The use of the words “more than” would also <\/p>\n
    indicate that it has to be a positive figure in excess of Rs. Two <\/p>\n
    hundred thousand.\n<\/p>\n
    16.   Another aspect of the matter which requires consideration is <\/p>\n
    the words “in the case to which appeal relates in clause (c) and an <\/p>\n
    inference should be drawn that it is the item in dispute that has to <\/p>\n
    be considered by determining the amount of fee that is payable.\n<\/p>\n
    In our opinion, such a contention is not permissible considering <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:50:32 :::<\/span>
\n                                                17<\/span><\/p>\n
    the clear language of clause (c).  What has to be determined is the <\/p>\n
    purpose for deciding the quantum of fee that has to be paid and <\/p>\n
    what is the total income that is computed by the Assessing Officer <\/p>\n
    for   the   year   to   which   the   appeal   relates.     It   is   that   figure   that <\/p>\n
    determines the quantum of fee payable.  Let us take an illustration <\/p>\n
    cited on behalf of the petitioner.   Take a case where an assessee <\/p>\n
    declares a loss of Rs.10 lakhs   after claiming a deduction of Rs.\n<\/p>\n
    10,50,000\/- by way of interest.  The Assessing Officer comes to the <\/p>\n
    conclusion   that   the   interest   is   to   be   disallowed.     Therefore   he <\/p>\n
    computes the total income of Rs.50,000\/-.   In such a case even <\/p>\n
    though   the   disputed   amount   on   the   appeal   would   be   Rs.\n<\/p>\n
    10,50,000\/- but it is not the case of the respondents that the fee <\/p>\n
    payable   will   be   any   amount   of   Rs.500\/-   because   the   case   falls <\/p>\n
    within scope of clause (a).   However assuming the assessee had <\/p>\n
    determined the loss of return of Rs.13 lakhs which was arrived at <\/p>\n
    by making the aforesaid claim of Rs.10,50,000\/- and if this claim <\/p>\n
    was disallowed the loss would be determined at Rs.2,50,000\/-.  In <\/p>\n
    such an eventuality considering the revenues stand, it is clause (c) <\/p>\n
    that   applies   in   case   the   amount   is   disputed   in   appeal   is   Rs.\n<\/p>\n
    9,50,000\/-   but   because   the   amount   of   loss   computed   is   rs.\n<\/p>\n
    2,50,000\/- but numerically as a whole number larger than Rs.Two <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:50:33 :::<\/span>
\n                                            18<\/span><\/p>\n
    lakhs.  This contention overlooks the clear language of clause (c) <\/p>\n
    and therefore cannot be sustained.\n<\/p>\n
    17.   Considering   the   above   discussions   in   our   opinion,   the <\/p>\n
    expression   “more   and   less”will   have   to   be   given   the     natural <\/p>\n
    meaning.  It can only be more than a negative income even if the <\/p>\n
    expression   “income”   is   held   to   be   both   positive     and   negative <\/p>\n
    income.  Negative income cannot be more.  It will always be less.\n<\/p>\n
    In that event the language of 6(a) that would be attracted.   The <\/p>\n
    other way of looking at it is if the total income can be considered <\/p>\n
    even to be the loss then the absence of it will not be covered by <\/p>\n
    either (a), (b) or (c) of sub-section (6).   It will be clause (d) of <\/p>\n
    sub-section (6) which will apply.  It is no doubt true that on behalf <\/p>\n
    of the respondents, the learned counsel has submitted that clause <\/p>\n
    (d)   would  normally  apply  to   other  cases   like   penalties,   interest <\/p>\n
    levy, denying of refund and the like.\n<\/p>\n
    18.   However, considering the entire scheme of the Act and the <\/p>\n
    history of the purpose of the amendment, we have no difficulty in <\/p>\n
    holding that either clause (a) or (d) of sub-section (6) of section <\/p>\n
    253   would   be   attracted   but   considering   the   earlier   discussion <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:50:33 :::<\/span>
\n                                      19<\/span><\/p>\n
    regarding that loss would also be covered by the expression “total <\/p>\n
    income”, we would hold that in such a case it would be covered by <\/p>\n
    clause (d).  If that be so, the appellants were right in paying court <\/p>\n
    fee of Rs.500\/-.  In view of that, order dated 21st January 2009 is <\/p>\n
    set aside and appeal is restored to file as properly stamped.\n<\/p>\n
    19.   Rule made absolute accordingly.  There shall be no order as <\/p>\n
    to costs.\n<\/p>\n
    (J.H. BHATIA, J)                       (F. I. REBELLO, J)\n        \n     \n\n\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 14:50:33 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Formerly Gold Fish Computers P. … vs Income-Tax Appellate Tribunal on 29 July, 2009 Bench: F.I. Rebello, J. H. Bhatia 1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1021 of 2009 Gilbs Computer Limited (Formerly Gold Fish Computers P. Ltd) a company incorporated under […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-174508","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nFormerly Gold Fish Computers P. ... vs Income-Tax Appellate Tribunal on 29 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/formerly-gold-fish-computers-p-vs-income-tax-appellate-tribunal-on-29-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Formerly Gold Fish Computers P. ... vs Income-Tax Appellate Tribunal on 29 July, 2009 - 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