The Chief Executive Officer Bijapur Sahakari Bank Ltd, Bijapur V. The Director of Income Tax , Bangalore

ITA 1681/BANG/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0180 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2017-2018
• Appeal Filed On: 16-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V K GURUNATHAN
• Keywords: Right to appeal; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO. 1681/BANG/2017 ASSESSMENT YEAR : 2017 - 18 THE CHIEF EXECUTIVE OFFICER, BIJAPUR SAHAKARI BANK LTD., 1 ST FLOOR, YOGESH CHAMBERS, OLD SS TEMPLE ROAD, BIJAPUR 586 101. PAN: AAAAB 3515A VS. THE DIRECTOR OF INCOME TAX (INTELLIGENCE & CRIMINAL INVESTIGATION), BENGALURU. APP ELL ANT RESPONDENT APPELLANT BY : SHRI V.K. GURUNATHAN, ADVOCATE RESP ONDENT BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT(DR)(ITAT), BENGALURU. DATE OF HEARING : 10.09 .201 8 DATE OF PRONOUNCEMENT : 12 .09 .201 8 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 12.7.2018 OF THE DIRECTOR OF INCOME TAX (INTELLIGEN CE & CRIMINAL INVESTIGATION) IMPOSING A PENALTY ON THE U/S. 271FA OF THE INCOME-TAX ACT, 1961 ['THE ACT'] FOR NON-FILING OF STATEMENT OF FIN ANCIAL TRANSACTIONS OR REPORTABLE ACCOUNTS FOR CASH DEPOSITS U/S. 258BA(2) OF THE ACT R.W. RULE 114E OF THE INCOME-TAX RULES, 1962 ['THE RULES']. ITA NO.1681/BANG/2017 PAGE 2 OF 5 2. THE APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL A GAINST THE IMPUGNED ORDER IS NOT MAINTAINABLE AND IS LIABLE TO BE DISMISSED IN LIMINE . A SIMILAR APPEAL WAS FILED BY RAICHUR CITY URBAN CO -OPERATIVE BANK LTD. AND THIS TRIBUNAL IN ITA NO.1147/BANG/2015 VIDE ORD ER DATED 26.4.2017 DISMISSED THE AFORESAID APPEAL AS NOT MAINTAINABLE. THE TRIBUNAL TOOK THE FOLLOWING VIEW, AFTER REFERRING TO THE POWERS OF TH E TRIBUNAL U/S.253 OF THE ACT :- 6. FROM THE READING OF THE SEC. 253, IT ABUNDANTLY CLEAR THAT IF THE ORDER PASSED BY THE CIT(A) AND THE ORDER PASSED BY THE AUTHORITIES AS MENTIONED IN 253, THEN THE APPEAL OF THE SAID AUTHORITY LIES WITH THE TRIBUNAL. HOWEVER APPEAL AG AINST THE ORDERS PASSED BY THE AO OR ANY AUTHORITY EXERCISING SIMILA R POWER LIES BEFORE THE CIT(A) U/S 246A OF THE ACT. THE SECTION 246A(J)(B) PROVIDED FILING THE APPEAL BEFORE THE CIT(A). THE P ROVISION OF SEC. 246A(J)(B) PROVIDES AS UNDER:- SECTION 271, SECTION 271A, [SECTION 271AAA,] [SECTION 271AAB,] SECTION 271F, [SECTION 271FB,] SECTION 272AA OR SECTION 272BB; 7. IN OUR VIEW, THE FILING OF AN APPEAL IS A STATU TORY RIGHT PROVIDED BY THE STATUTE AND WHICH IS TO BE EXERCISE D BY THE ASSESSEE IN THE MANNER AS PROVIDED BY THE ACT. THE ACT PROVI DES APPEAL CAN BE FILED AGAINST THE ORDER U/S 271FA BEFORE THE CIT(A) UNDER SECTION 264(J)(B) OF THE ACT AND, THEREFORE, THE AP PEAL FILED BY THE ASSESSEE BEFORE US IS WITHOUT ANY JURISDICTION AS IT WAS TO BE FILED BEFORE CIT(A). THE HONBLE SUPREME COURT I N THE MATTER OF ARCOT TEXTILE MILLS LTD., VS. THE REGIONA L PROVIDENT FUND COMMISSIONER & OTHERS IN CA NO.9488/2013 (ARISING OUT OF S.L.P (C) NO. 13410/20 12) DECIDED ON 18-10-2013 HAD HELD IN PARAGRAPH 17 AS U NDER:- 17. MS. APARNA BHAT, LEARNED COUNSEL FOR THE RESPOND ENT NOS. 1 TO 3 WOULD CONTEND THAT THE PAYMENT OF INTER EST BY THE EMPLOYER IN CASE OF BELATED PAYMENT IS STATUTOR ILY ITA NO.1681/BANG/2017 PAGE 3 OF 5 LEVIABLE AND A SPECIFIED RATE HAVING BEEN PROVIDED, THE AUTHORITY HAS NO DISCRETION AND, THEREFORE, IT IS O NLY A MATTER OF COMPUTATION AND THERE CANNOT BE ANY CHALL ENGE TO IT. BE IT NOTED, IT WAS CANVASSED BY THE SAID RE SPONDENTS BEFORE THE HIGH COURT THAT AN APPEAL WOULD LIE AGAI NST AN ORDER PASSED UNDER 7Q. ON A SCRUTINY OF SECTION 7I, WE NOTICE THAT THE LANGUAGE IS CLEAR AND UNAMBIGUOUS A ND IT DOES NOT PROVIDE FOR AN APPEAL AGAINST THE DETERMIN ATION MADE UNDER 7Q. IT IS WELL SETTLED IN LAW THAT RIGHT OF APPEAL IS A CREATURE OF STATUTE, FOR THE RIGHT OF APPEAL INHERES IN NO ONE AND, THEREFORE, FOR MAINTAINABILITY OF AN APPEAL THERE MUST BE AUTHORITY OF LAW . THIS BEING THE POSITION A PROVISION PROVIDING FOR APPEAL SHOULD NEITHER BE CONSTRUED TO O STRICTLY NOR TOO LIBERALLY, FOR IF GIVEN EITHER OF THESE EXTREME INTERPRETATIONS, IT IS BOUND TO ADVERSELY A FFECT THE LEGISLATIVE OBJECT AS WELL AS HAMPER THE PROCEEDING S BEFORE THE APPROPRIATE FORUM. NEEDLESS TO SAY, A RIGHT OF APPEAL CANNOT BE ASSUMED TO EXIST UNLESS EXPRESSLY PROVIDE D FOR BY THE STATUTE AND A REMEDY OF APPEAL MUST BE LEGIT IMATELY TRACEABLE TO THE STATUTORY PROVISIONS. IF THE EXPRE SS WORDS EMPLOYED IN A PROVISION DO NOT PROVIDE AN APPEAL FR OM A PARTICULAR ORDER, THE COURT IS BOUND TO FOLLOW THE EXPRESS WORDS. TO PUT IT OTHERWISE, AN APPEAL FOR ITS MAINTAINABILITY MUST HAVE THE CLEAR AUTHORITY OF LA W AND THAT EXPLAINS WHY THE RIGHT OF APPEAL IS DESCRIBED AS A CREATURE OF STATUTE. (SEE: GANGA BAI V. VIJAY KUMAR AND OTHERS[3], GUJARAT AGRO INDUSTRIES CO. LTD. V. MUNCI PAL CORPORATION OF THE CITY OF AHMEDABAD AND ORS.[4], ST ATE OF HARYANA V. MARUTI UDYOG LTD. AND OTHERS[5], SUPE R CASSETTES INDUSTRIES LIMITED V. STATE OF U.P. AND ANOTHER[6], RAJ KUMAR SHIVHARE V. ASSISTANT DIRECTOR , DIRECTORATE OF ENFORCEMENT AND ANOTHER[7], COMPETIT ION COMMISSION OF INDIA V. STEEL AUTHORITY OF INDIA LIMI TED AND ANOTHER[8]) 8. IN THE PRESENT CASE, THE LANGUAGE OF SEC. 246A(J )(B) IS CLEAR AND UNAMBIGUOUS, THEREFORE IT IS HELD THE ASS ESSEE HAS REMEDY BY WAY OF FILING AN APPEAL BEFORE THE CI T(A) AGAINST ,THE ORDER IMPOSING A PENALTY U/S 271FA AND NOT BY FILLING THE APPEAL BEFORE US . THE ARGUMENT OF T HE ASSESSEE THAT THE DIRECTOR OF INCOME-TAX (INTELLIGE NCE & CRIMINAL INVESTIGATION) IS EQUIVALENT TO THE CIT(A) AND, THEREFORE, THE CIT(A) CANNOT HEAR THE APPEAL AGAINST THE ITA NO.1681/BANG/2017 PAGE 4 OF 5 ORDER PASSED BY THE EQUIVALENT OFFICER IN OUR VIEW IS NOT SUSTAINABLE AND WE ALSO DO NOT SUBSCRIBE THE VIEW O F THE COORDINATE BENCH IN THE MATTER OF RAIBAREILLY DISTR ICT CO- OPERATIVE BANK LTD., (SUPRA). IN OUR VIEW THE JURIS DICTION OF THE TRIBUNAL CANNOT BE PROVIDED BY WAY OF CONVEN IENCE OR INTERPRETATION, IT IS TO PROVIDED BY THE STATUTE AND SINCE THERE IS NO PROVISION FOR HEARING HE APPEAL AGAINST THE ORDER PASSED BY THE AUTHORITY U/S 271FA BY THE TRIBU NAL, THEREFORE, WE DO NOT DEEM IT APPROPRIATE TO DEAL WI TH THE APPEAL FILED BY THE ASSESSEE, AS THE TRIBUNAL IS NO T HAVING THE JURISDICTION TO ENTERTAIN THE APPEAL. ACCORDINGL Y, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS THE TR IBUNAL HAS NO JURISDICTION. 9. HOWEVER THE ASSESSEE MAY FILE THE APPROPRIATE R EMEDY BEFORE THE CIT(A) IF SO ADVISED AND WE EXPECT THE LD CIT(A) TO PASS AN APPROPRIATE ORDER WITHOUT BEING INFLUENCED BY THE ORDER PASSED BY THE DIRECTOR OF I NCOME- TAX (INTELLIGENCE & CRIMINAL INVESTIGATION) AND HE W ILL ALSO CONSIDER THE CONDONATION OF DELAY IN FILING THE APP EAL BEFORE HIM IN VIEW OF THE PENDENCY OF THE APPEAL BE FORE THIS TRIBUNAL. IN VIEW OF THE ABOVE, THE APPEAL IS DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS DISMISSED. 3. THE PRESENT APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE FOR THE REASONS GIVEN BY THE TRIBUNAL IN THE ORDER CITED AB OVE. WE THEREFORE DISMISS THE APPEAL OF THE ASSESSEE. WE, HOWEVER, A LLOW LIBERTY TO THE ASSESSEE TO SEEK PROPER REMEDY IN ACCORDANCE WITH T HE LAW AS OBSERVED BY THE TRIBUNAL IN PARA 9 OF THE ORDER QUOTED ABOVE . ITA NO.1681/BANG/2017 PAGE 5 OF 5 4. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF SEPTEMBER, 2018. SD/- SD/- ( G. MANJUNATHA ) ( N.V. VASUDEVAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 12 TH SEPTEMBER, 2018. / D ESAI S MURTHY / COPY TO: 1. APP ELL ANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.