Jodhpur Nagrik Sahakari Bank, JODHPUR V. CIT(CIB), JAIPUR

ITA 107/JODH/2011

• Counselvise Citation: 10723314 RSA 2011
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 17-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, SMC, JODHPUR BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER ITA NO.107/JODH/2011 ASSESSMENT YEAR : 2005-06 JODHPUR NAGRIK SAHKARI BANK, VS. COMMISSIONER OF I NCOME TAX (CIB), MAANJI KA HATTA, JAIPUR. PAOTA, JODHPLUR. (TAN: AAAJJ 0127 B). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT KOTHARI, A.R. RESPONDENT BY : SHRI G.R. KOKANI, D.R. DATE OF HEARING : 09.07.2012 DATE OF PRONOUNCEMENT : 09.07.2012 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 18.01.2011 OF THE LD. CIT(A), JODHPUR. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN ITS APPEAL RELATES TO THE PENALTY AMOUNTING TO R.93,700/- LEVIED BY THE LD. CIT (CIB) UNDER SECTION 271FA OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT). 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE LD. DIT (CIB), JAIPUR LEVIED PENALTY UNDER SECTION 271FA OF THE ACT BY OBSERVING THAT SE CTION 285BA(1) OF THE ACT READ WITH RULE 114E OF THE INCOME TAX RULES REQUIRE S THE SPECIFIED PERSON ITA NO.107/JODH/2011 A.YS. 2005-06 2 REFERRED TO THEREIN WHO IS RESPONSIBLE FOR REGISTER ING OR MAINTAINING BOOKS OF ACCOUNT OR OTHER DOCUMENTS CONTAINING OF A RECORD O F ANY SPECIFIED FINANCIAL TRANSACTIONS UNDER ANY LAW FOR THE TIME BEING IN FO RCE TO FURNISH THE ANNUAL INTIMATION RETURN (AIR) IN RESPECT OF SUCH SPECIFIC FINANCIAL TRANSACTIONS WHICH IS REGISTERED OR RECORDED BY HIM DURING THE FINANCIAL YEAR TO THE PRESCRIBED INCOME TAX AUTHORITY. THE LD. DIT (CIB), JAIPUR FURTHER O BSERVED THAT A NOTICE UNDER SECTION 271FA OF THE ACT WAS ISSUED TO THE SPECIFIE D PERSON REQUIRING HIM TO SHOW CAUSE AS TO WHY PENALTY UNDER SECTION 271FA OF THE ACT SHOULD NOT BE IMPOSED UPON HIM FOR FAILURE TO FILE THE AIR WITHIN THE PRE SCRIBED TIME. SINCE THERE WAS NO COMPLIANCE, THE LD. DIT (CIB) LEVIED PENALTY OF RS. 93,700/- FOR THE DELAY OF 937 DAYS IN FILING THE AIR. THE SPECIFIED PERSON CARRI ED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL BY STATING THAT THE SAID A PPEAL DOES NOT LIE TO HIS OFFICE. THE RELEVANT OBSERVATIONS/FINDINGS HAVE BEEN GIVEN BY THE LD. CIT(A) IN PARAGRAPH NOS.4 TO 7 OF THE IMPUGNED ORDER WHICH READ AS UNDE R :- 04. AS PER PROVISION OF SECTION 285BA, THE PRESCRI BED AUTHORITY IS DIRECTOR OF INCOME-TAX (CIB). THE DIT (CIB) IS HAV ING JURISDICTION OVER THE PERSON DESCRIBED IN THE PROVISION OF SECTI ON 285BA(1) AND ACCORDINGLY, HE IS EMPOWERED TO IMPOSE PENALTY U/S 271FA ON FAILURE TO FURNISH ANNUAL INFORMATION RETURN. 05. VIDE NOTIFICATION NO.3 OF 2006 DATED 3-5-2006 I SSUED BY CCIT (CCA), JAIPUR, THE JURISDICTION OF THE CIT(A), JODH PUR LIES WITH IN RESPECT OF APPEAL FILED IN CASES OR CLASS OF CASES OF PERSONS FALLING WITHIN THE JURISDICTION OF COMMISSIONER OF INCOME-T AX I, JODHPUR AND COMMISSIONER OF INCOME-TAX-II, JODHPUR ONLY. A S MENTIONED ABOVE, THE PERSON WHO WAS RESPONSIBLE FOR FURNISHIN G ANNUAL INFORMATION RETURN WAS IN THE JURISDICTION OF DIT ( CIB) IN ACCORDANCE ITA NO.107/JODH/2011 A.YS. 2005-06 3 TO PROVISION OF SECTION 285BA, THEREFORE, AN APPEAL AGAINST THE PENALTY ORDER PASSED U/S 271FA R.W.S 285BA DOES NOT LIE TO THE OFFICE OF CIT(A), JODHPUR. 06. THE PROVISION OF SECTION 246A(Q) PROVIDES THAT AN ORDER IMPOSING A PENALTY UNDER CHAPTER XXI CAN BE APPEALE D TO THE CIT(A). IN THIS REGARD, IT WOULD BE RELEVANT TO NOTE HERE T HAT TO FILE AN APPEAL IN THE OFFICE OF THE CIT(A), THE FIRST CONDITION IS REQUIRED TO BE SEEN IS WHETHER, THE CASE OR CLASS OF CASES OF PERSONS FALL IN THE JURISDICTION OF ASSESSING OFFICER FOR WHICH THE CIT(A) WAS EMPOWERE D TO PERFORM FUNCTIONS OF APPEAL MATTER OR NOT. IN THE PRESENT CASE AS MENTIONED ABOVE, THE CIT(A), JODHPUR DOES NOT HAVE JURISDICTI ON OVER THE CASE OR CLASS OF CASES OF PERSONS PRESCRIBED IN THE PROV ISION OF SECTION 285BA(1) R.W.S.271FA. 07. THE PROVISION OF SECTION 116 DEFINES CLASSES OF INCOME-TAX AUTHORITY FOR THE PURPOSE OF INCOME-TAX ACT. CLAUS E C OF SECTION 116 DEFINES AS DIRECTORS OF INCOME-TAX OR COMMISSIONER OF INCOME-TAX OR COMMISSIONER OF INCOME-TAX (APPEALS). THUS, IT MAKES CLEAR THAT THE DIT (CIB) AND CIT(A) ARE EQUAL INCOME-TAX AUTHO RITY AND THEREFORE, THE CIT(A) CANNOT HEAR APPEAL AGAINST TH E ORDER PASSED BY THE EQUAL AUTHORITY I.E. DIT (CIB). FROM THIS REAS ONING ALSO, IT CAN BE SAID THAT APPEAL AGAINST ORDER OF DIT (CIB), JAIPUR DOES NOT LIE BEFORE TO THE OFFICE OF CIT(A), JODHPUR. IT IS FUR THER CLARIFIED THAT THE CHAPTER XXI CONSISTS OF SECTIONS FROM 271 TO 275. PENALTY IMPOSED UNDER THESE PROVISIONS EXCEPT SECTION 271FA BY THE ASSESSING OFFICER WHO FALLS IN THE JURISDICTION OF THE CIT(A), JODHPU R CAN BE FILED U/S 246A(Q) AND THEREFORE, IT CAN BE SAID THAT AN APPEA L AGAINST PENALTY IMPOSED BY THE DIT (CIB), JAIPUR U/S 271FA R.W.S. 2 85BA DOES NOT LIE TO THE OFFICE OF CIT(A), JAIPUR. 4. NOW THE SPECIFIED PERSON IS IN APPEAL. DURING T HE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE/SPECIFIED PERSON SUBMITTED THAT NO NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY THE LD. CIT(A) AND THE APPE AL WAS DISMISSED EX-PARTE WITHOUT PROVIDING ANY OPPORTUNITY OF BEING HEARD. IT WAS FURTHER STATED THAT AS PER THE PROVISIONS OF SECTION 246A(Q) OF THE ACT, THE A PPEAL AGAINST THE PENALTY ORDER ITA NO.107/JODH/2011 A.YS. 2005-06 4 UNDER CHAPTER XXI OF THE ACT LIES WITH THE LD. CIT( A) AND THE PENALTY LEVIED UNDER SECTION 271FA OF THE ACT FALLS IN CHAPTER XXI. TH EREFORE, THE ASSESSEE HAS RIGHTLY FILED THE APPEAL BEFORE THE LD. CIT(A) WHO WAS NOT JUSTIFIED IN DISMISSING THE SAME BY STATING THAT IT WAS NOT MAINTAINABLE. IT WAS SU BMITTED THAT THE LD. CIT(A) DISMISSED THE APPEAL ONLY ON THE BASIS THAT THE ASS ESSEE HAD ALSO FILED APPEAL SIMULTANEOUSLY BEFORE THE I.T.A.T., JODHPUR BENCH, JODHPUR ON 21.11.2009 AND THE SAME WAS DECIDED ON 13.05.010 DISMISSING THE APPEAL OF THE ASSESSEE STATING THAT THERE NO DIRECT APPEAL LIES BEFORE THE I.T.A.T., JO DHPUR BENCH AGAINST THE ORDER PASSED UNDER SECTION 271FA OF THE ACT. 5. IN HIS RIVAL SUBMISSIONS, THE LD. DEPARTMENTAL R EPRESENTATIVE SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE P RESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASS ESSEE/SPECIFIED PERSON ON ACCOUNT OF NON-MAINTAINABILITY. IT IS ALSO NOTICED THAT THE LD. CIT(A), WITHOUT ALLOWING ANY OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE, DISMISSED THE APPEAL EX- PARTE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CO NDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PERTAM. IN THE PRESENT CASE, SINCE NO OPPORTUNITY OF BEING HEARD WAS GIVEN BY THE LD. CIT(A) AND EVEN IN THE B ODY OF ORDER NOWHERE IT IS MENTIONED THAT ANY NOTICE WAS ISSUED TO THE ASSESSE E/SPECIFIED PERSON, I, THEREFORE, ITA NO.107/JODH/2011 A.YS. 2005-06 5 FEEL IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDI NG DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. AS REGARDS THE OBSERVATION GIVEN BY THE LD. CIT( A) THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE I.T.A.T., JODHPUR BEN CH ON 13.05.2010, IT IS RELEVANT TO POINT OUT THAT NOWHERE IT WAS STATED IN THE SAID ORDER THAT DIRECT APPEAL DOES NOT LIE BEFORE THE CIT(A). HOWEVER, IT WAS ON LY MENTIONED THAT NO DIRECT APPEAL LIES BEFORE THE I.T.A.T. AGAINST THE ORDER P ASSED UNDER SECTION 271FA OF THE ACT BECAUSE AS PER THE PROVISIONS CONTAINED UNDER S ECTION 246A(Q) OF THE ACT, THE APPEAL AGAINST THE PENALTY ORDER UNDER CHAPTER XXI OF THE ACT LIES WITH THE CIT(A) AND SECTION 271FA OF THE ACT IS A PART OF CHAPTER X XI OF THE ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 09.07.2012) SD/- (N.K. SAINI) ACCOUNTANT MEMBER DATE: 9 TH JULY, 2012 PBN/* ITA NO.107/JODH/2011 A.YS. 2005-06 6 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLA TE TRIBUNAL, JODHPUR TRUE COPY