IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.17366 of 2010 With I.A. No. 307 of 2011 In CIVIL WRIT JURISDICTION CASE No.17366 of 2010 ============================================== Dr. Gauri Shankar Prasad - Petitioner(s) Versus Income Tax Appellate Tribunal, Patna Bench, Patna & Ors. - Respondent(s) ============================================= Appearance: For the Petitioner: Mr. D.V. Pathy For the Respondent: Smt. Archana Sinha ============================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 05. 06.04.2011 Reg: I.A. No. 307 of 2011 This application has been made by the writ petitioner to amend the above C.W.J.C. No. 17366 of 2011. Proposed amendment is allowed. The amendment will be carried out within two weeks from today. The Interlocutory Application stands disposed of. Reg: C.W.J.C. No. 17366 of 2010 With the consent of the learned Advocates, the petition is heard and decided today. This petition under Article 226 of the Constitution has been filed by the assessee to challenge the order dated 27th December 2007 made by the Income Tax Appellate Tribunal, Patna Bench (hereinafter referred to as ‘the Tribunal’) in I.T.A. Nos. 113 to 2 117(Pat)/2000 in respect of the assessment years 1992-93 to 1996-97 and the order dated 16th July 2010 made on Miscellaneous Application Nos. 18 to 20/PAT/2008. The assessee preferred the above referred I.T.A. Nos. 113 to 117(Pat)/2000 against the order of penalty imposed for the assessment years 1992-93 to 1996-97. On the appeals the petitioner paid a fee of Rs. 500/- as envisaged by Clause (d) of Sub-Section 6 of Section 253 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). The Tribunal was, however, of the opinion that the writ petitioner was liable to pay a fee of Rs. 10,000/- on each appeal as envisaged by Clause (c) of Sub-Section 6 of Section 253 of the Act. As, in spite of the notice, the petitioner failed to pay the deficit court fee the appeals were dismissed by the impugned order dated 27th December 2007 on that ground alone. Feeling aggrieved the petitioner filed above Miscellaneous Application Nos. 18 to 20/PAT/2008 for recall of the order dated 27th December 2007 in respect of the appeal nos. 113 to 115(pat)/2000. He paid the deficit fee of Rs. 9,500/- in the said three appeals. Nevertheless, the learned Tribunal by its order dated 16th July 2010 held that the Tribunal was right in dismissing the appeals for want of adequate fees and that no error apparent on the face of the record was pointed out so as to invoke power of rectification under Section 254 of the Act. Therefore, the present writ petition. Learned Advocate Mr. D.V. Pathy has appeared for 3 the petitioner. He has submitted that the appeals before the Tribunal were preferred only in respect of penalty imposed for the relevant assessment years. The appeals were, therefore, governed by Clause (d) of Sub-Section 6 of Section 253 of the Act which reads, “Where the subject-matter of an appeal relates to any matter other than those specified in Clause (a), (b) and (c), Rs. 500/-.” In support of his submission Mr. Pathy has relied upon a judgment of this Court in the matter of Dr. Ajit Kumar Pandey Vs. Income Tax Appellate Tribunal {310 ITR 195 (Pat)}. He has submitted that in similar set of facts this Court has held that when the challenge before the Tribunal is in respect of penalty alone the matter would be governed by above Clause (d). A fee of Rs. 500/- would be payable on such appeals. He has submitted that the Tribunal has erred in not considering the said judgment and in directing the writ petitioner to pay a fee of Rs. 10,000/- on each appeal. He has submitted that with a view to avoiding contest, the petitioner did pay the deficit fee of Rs. 9,500/- in three of the appeals in which he filed applications for rectification under Section 254 of the Act. In rest of the two appeals he could not manage the amount of additional fees. Nevertheless, as the fee payable was Rs. 500/- the Tribunal was wrong in dismissing the appeals on the sole ground of deficit fees. In the matter of Dr. Ajit Kumar Pandey (supra) a Bench of this Court has held that the challenge to the imposition of penalty alone in appeal before the Tribunal, fees payable would be Rs. 500/- as provided in Clause (d) of Sub-Section 6 of Section 253 4 of the Act. Learned Advocate Mrs. Sinha has appeared for the Revenue. She does not dispute the aforesaid proposition enunciated in the above judgment. In our opinion, in view of the aforesaid binding judgment in the matter of Dr. Ajit Kumar Pandey the Tribunal was required to hear the appeals on merits rather than dismissing the appeals on the ground of deficit fees. For the aforesaid reasons, we allow this petition. The order dated 16th July 2010 made by the Tribunal in Miscellaneous Application Nos. 18 to 20/PAT/2008 and the order dated 27th December 2007 made by the Tribunal in I.T. Appeal Nos. 113 to 117(Pat)/2000 are quashed and set aside. The Appeal Nos. 113 to 117(Pat)/2000 are restored on the register of the Tribunal. The Tribunal will hear and decide the appeals on merits without insisting for payment of alleged deficit fee of Rs. 9,500/- on ITA Nos. 116 and 117(Pat)/2000. Learned Advocate Mr. Pathy foregoes the claim for refund of the additional fee of Rs. 9,500/- paid on I.T. Appeal Nos. 113 to 115(Pat)/2000. The writ petition stands disposed of in the above terms. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)