The Chief Executive Officer, The Puttur Co-operative Town Bank Ltd, Puttur V. The Director of Income Tax, Bangalore

ITA 1473/BANG/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7653 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 23-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PADMAMEENAKSHI J
• Assessee Lawyers: PRATHIBHA
• Keywords: Right to appeal
• Section: 153A; 80G; 12AA; 147; 246; 263; 132; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, B ENGALURU BEFORE S HRI N.V.VASUDEVAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER I TA NO S . 1471 TO 1479 / BANG/2 0 1 7 (ASSESSMENT YEAR S : 2005 - 06, 2007 - 08 TO 2014 - 15 ) THE PUTTUR CO - OPERATIVE T OWN BANK LTD. NO.181, NEAR MALAHALLI SHIVARAYA CIRCLE, PUTTUR - 574 201. DK. PAN:AAAJT 0851 E VS. APPELLANT DIRECTOR OF INCOME - TAX (INTELLIGENCE & CRIMINAL INVESTIGATION), BENGALURU. RESPONDENT APPELLANT BY : SMT. PRATHIBHA, ADVOCATE. RESPONDENT BY : SMT.PADMAMEENAKSHI, JCIT(DR) DATE OF HEARING : 19/07/2018 DATE OF PRONOUNCEMENT : 27 /07/2018 O R D E R PER BENCH : THESE ARE APPEALS FILED BY THE ASSESSEE CO - OPERATIVE BANK, DIRECTED AGAINST THE ORDERS PASSED U/S 271FA OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] BY THE DIRECTOR OF INCOME - TAX, (INTELLIGENCE & CRIMINAL INVESTIGATION), [ THE DIRECTOR OF IT (I&CI) FOR SHORT] BENGALURU, DATED 17/04/2017. SINCE THE ISSUES INVOLVED IN AL L THESE APPEALS IS COMMON, WE PROCEED TO DISPOSE OF THE SAME VIDE THIS COMMON ORDER. 2. FROM THE PERUSAL OF THE MEMORANDUM OF APPEAL, WE FIND THAT DIRECT APPEAL IS FILED BEFORE THIS TRIBUNAL AGAINST THE ORDERS PASSED BY THE DIRECTOR OF INCOME - TAX, (I&CI), BENGALURU. THEREFORE THE ISSUE THAT COMES UP FOR CONSIDERATION IS WHETHER DIRECT APPEAL LIES TO ITA NO . 1471 TO 1479 /BANG/20 17 P AGE 2 OF 5 THIS TRIBUNAL AGAINST ORDERS OF PENALTY PASSED U/S 271FA OF THE ACT BY THE DIRECTOR OF INCOME - TAX, (I&CI), BENGALURU . NOW THE LAW IS SETTLED THAT RIGHT OF APP EAL IS A CREATURE OF THE STATUTE . IN THE ABSENCE OF EXPRESS PROVISIONS OF LAW PROVIDING FOR RIGHT OF APPEAL, NO APPEAL LIES. THE PROVISIONS OF SECTION 253(1)(A) SET OUT DIFFERENT ORDERS AGAINST WHICH AN ASSESSEE OR REVENUE AGGRIEVED BY SUCH ORDER CAN FIL E AN APPEAL. THE PROVISIONS OF SECTION 253 LAYS DOWN THAT AN APPEAL LIES TO THE TRIBUNAL AGAINST THE FOLLOWING ORDERS: APPEALS TO THE APPELLATE TRIBUNAL. 253. (1) ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOWING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH ORDER ( A ) AN ORDER PASSED BY A 49 [DEPUTY COMMISSIONER (APPEALS)] 50 [BEFORE THE 1ST DAY OF OCTOBER, 1998 OR, AS THE CASE MAY BE, A COMMISSIONER (APPEALS)] UNDER SECTION 154 SECTION 250 , SECTION 271 , SECTION 271A OR SECTION 272A ; OR ( B ) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER CLAUSE ( C ) OF SECTION 158BC , IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A , AFTER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997; OR ( BA ) AN ORDER PASSED BY A N ASSESSING OFFICER UNDER SUB - SECTION (1) OF S ECTION 115VZC ; OR ( C ) AN ORDER PASSED BY A PRINCIPAL COMMISSIONER OR ] COMMISSIONER UNDER SECTION 12AA 59 [OR UNDER CLAUSE ( VI ) OF SUB - SECTION (5) OF SECTION 80G ] OR] UNDER SECTION 263 OR UNDER SECTION 271 ] 61 [OR UNDER SECTION 272A OR AN ORDER PASSED BY HIM UNDER SECTION 154 AMENDING HIS ORDER UNDER SECTION 263 OR AN ORDER PASSED BY A 63A [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR A PRINCIPAL DIRECTOR GENERAL OR DIRECTOR GENERAL OR A PRINCIPAL DIRECTOR OR DIRECTOR UND ER SECTION 272A ; ( D ) AN ORDER PASSED BY AN ASS ESSING OFFICER UNDER SUB - SECTION (3), OF SECTION 143 OR SECTION 147 65 [OR SECTION 153A OR SECTION 153C IN PURSUANCE OF THE DIRECTIONS OF THE DISPUTE RESOL UTION PANEL OR AN ORDER PASSED UNDER SECTION 154 IN RESPECT OF SUCH ORDER; ( E ) 66 [***] (2) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MAY, IF HE OBJECTS TO ANY ORDER PASSED BY A DEPUTY COMMISSIONER (APPEALS) BEFORE THE 1ST DAY OF OCTOBER, 1998 OR, AS THE CASE M AY B E, A ITA NO . 1471 TO 1479 /BANG/20 17 P AGE 3 OF 5 COMMISSIONER (APPEALS) UNDER SECTION 154 OR SECTION 250 , DIRECT THE A SSESSING OFFICER TO A PPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER. (2A) THE PRINCIPAL COMMISSIONER OR ] COMMISSIONER MAY, IF HE OBJECTS TO ANY DIRECTION ISSUED BY THE DISPUTE RESOLUTION PANEL UNDER SUB - SECTION (5) OF SECTION 144C IN RESPECT OF ANY OBJECTION FILED ON OR AFTER THE 1ST DAY OF JULY, 2012, BY THE ASSESSEE UNDER SUB - SECTION (2) OF SECTION 144C IN PURSUA NCE OF WHICH THE ASSESSING OFFICER HAS PASSED AN ORDER COMPLETING THE ASSESSMENT OR REASSESSMENT, DIRECT THE ASSESSING OFFICER TO APPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER.] (3) . . . . . . . . . . . . . . . . . . . . . FROM THE MERE PERUSAL O F THE PROVISIONS, IT IS CLEAR THAT NO APPEAL LIES TO THIS TRIBUNAL AGAINST ORDER PASSED U/S 271FA OF THE ACT. THE ORDER PASSED U/S 271 - FA OF THE ACT IS AN APPEALABLE UNDER CLAUSE (Q) OF SUB - SECTION (1) OF SECTION 246 A ACT BEFORE THE CIT(APPEALS). THEREF ORE, THE PROVISIONS OF THE ACT DO NOT ENVISAGE ANY DIRECT APPEAL TO THIS TRIBUNAL AGAINST THE ORDER PASSED U/S 271 - FA OF THE ACT. A SIMILAR ISSUE HAD COME UP BEFORE THE HON BLE RAJASTHAN HIGH COURT IN THE CASE OF DIRECTOR OF INCOME - TAX(CIB) VS. RAVI VIJAY (209 TAXMAN 498) WHEREIN THE HON BLE HIGH COURT HELD THAT THE ASSESSEE HAD EFFICACIOUS ALTERNATIVE REMEDY TO CHALLENGED THE SAID ORDER BY WAY OF APPEAL BEFORE THE CIT(APPEALS). THE RELEVANT PARAGRAPH IS EXTRACTED HEREUNDER: 6. THE QUESTION BEFORE THIS CO URT IS WHETHER AN ORDER PASSED UNDER SECTION 271FA OF THE 1961 ACT BY THE DIRECTOR INCOME TAX, WHO HOLDS THE RANK OF A COMMISSIONER IN THE INCOME TAX DEPARTMENT IS APPEALABLE UNDER SECTION 246A(1)(Q) OF THE 1961 ACT TO THE COMMISSIONER APPEALS. SECTION 246 A(1)(Q) OF THE 1961 ACT PROVIDES FOR APPEALS BEFORE THE COMMISSIONER APPEALS AGAINST AN ORDER OF PENALTY PASSED UNDER CHAPTER 21 OF THE 1961 ACT. SECTION 271FA ADMITTEDLY FALLS WITHIN CHAPTER 21 OF THE 1961 ACT. TO MY MIND THEREFORE ON A PLAIN READING OF T HE SAID PROVISION AN APPEAL AGAINST AN ORDER PASSED BY AN OFFICER OF THE RANK OF COMMISSIONER INCOME TAX UNDER SECTION 271FA OF THE 1961 ACT IS MAINTAINABLE BEFORE THE COMMISSIONER APPEALS. FROM A MERE READING OF THE PROVISION FOR FILING APPEALS AGAINST OR DERS PASSED UNDER SECTION 271 AND 272A (ALSO UNDER CHAPTER XXI) OF THE 1961 ACT BEFORE THE ITAT, THIS COURT CANNOT ON ANALOGY HOLD THAT BECAUSE THE SAID ORDERS PASSED BY AN OFFICER OF THE RANK OF COMMISSIONER OF INCOME TAX ARE APPEALABLE BEFORE THE ITAT UN DER SECTION 253 OF THE 1961 ACT, AN ORDER UNDER SECTION 271FA OF THE 1961 ACT ALSO PASSED BY ITA NO . 1471 TO 1479 /BANG/20 17 P AGE 4 OF 5 AN OFFICER OF THE RANK OF COMMISSIONER INCOME TAX SHOULD ALSO BE APPEALABLE BEFORE THE ITAT. IN MY CONSIDERED VIEW EVEN THOUGH ORDERS OF PENALTY UNDER SECTION 271 AND 272A OF THE 1961 ACT FALL UNDER CHAPTER XXI, APPEALS THEREFROM STAND EXCLUDED BEFORE THE COMMISSIONER APPEALS UNDER THE GENERAL PROVISIONS OF SECTION 246A(1)(Q) BY VIRTUE OF A SPECIFIC PROVISION UNDER SECTION 253(1)(C) OF THE 1961 ACT. CONSEQUENTLY, IN MY VIEW AN ORDER UNDER SECTION 271FA (CHAPTER XXI) OF THE 1961 IS PLAINLY APPEALABLE UNDER SECTION 246A(1)(Q) OF THE 1961 ACT AND NO AMOUNT OF INTERPRETATIVE EXERCISE CAN DISPLACE LAW AS ENACTED. FURTHER IT IS AN ADMITTED FACT THAT IN THE COURSE OF THE DE MAND NOTICE UNDER SECTION 156 OF THE 1961 ACT FOLLOWING THE ORDER OF PENALTY UNDER SECTION 271FA OF THE 1961 ACT, THE ASSESSEE WAS INFORMED THAT THE SAID ORDER WAS APPEALABLE BEFORE THE JURISDICTIONAL COMMISSIONER (APPEALS) -- IN THE INSTANT CASE COMMISSIONE R APPEALS III JAIPUR. EVEN THE CO - ORDINATE BENCH ES OF ITAT (I) AMRITSAR BENCH IN THE CASE OF THE MANAGER, THE GURDASPUR CENTRAL CO - OP. BANK LTD. VS. DIRECTO R OF INCOME - TAX (CIB) IN ITA NOS.367 TO 370/ASR./2010 DATED 11/06/2011 (II) COCHIN BENCH IN THE CASE OF SRO VS. DIRECTOR OF INCOME - TAX (INTELLIGENCE) (36 ITR (T) 140(COCHIN) ; AND (III) BENGALURU BENCH IN THE CASE OF RAICHUR CITY URBAN CO - OPERATIVE BANK LTD., VS. DY.DIRECTOR OF INCOME - TAX(INTELLIGENCE & CRIMINAL INVESTIGATION) (ITA NO.1147/BANG/2015 DATED 26/04/2017) TOOK THE SAME VIEW. IN THE LIGHT OF THE RATIO OF THE DECISIONS IN THE ABOVE CASES, WE ARE OF THE CONSIDERED OPINION THAT THE PRESENT APPEALS DO NOT LIE BEFORE US AS ARE NOT MADE APPEALABLE ORDERS U/S 253 OF THE ACT. HENCE, WE HAVE NO O PTION BUT TO DISMISS THE APPEALS AS NOT MAINTAINABLE. 3. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY 2018 SD/ - SD/ - (N.V.VASUDEVAN) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BENGALURU. D A T E D : 27/07/2018 SRINIVASULU, SPS ITA NO . 1471 TO 1479 /BANG/20 17 P AGE 5 OF 5 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE