The Sub Registrar, Kannur V. The Director of Income Tax (intelligence), Cochin

ITA 238/COCH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4587 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-08-2013
• Assessment Year: 2011-2012
• Appeal Filed On: 29-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Section: 80G; 12AA; 147; 263; 154; 2

Judgement Text

ITA NO 238 & SP - 47/ COCH/ 2013 1 IN THE INCOME TAX APELALTER TIBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI N.R.S. GANESAN, JM & B. R. BASKARAN, AM ITA NO. 238 /COCH/ 2013 (ASST YEAR 2011 - 12 ) THE SUB REGISTRAR SUB REGISTRAR OFFICE IRITTY KANNUR DIST VS THE DIRECTOR OF INCOME TAX (INTELLIGENCE ) KANDAMKOLATHY TOWERS 5 TH FLOOR, M G ROAD KOCHI 682 011 ( APPELLANT) (RESPONDENT) & STAY PETITION NO. 47/COCH/2013 THE SUB REGISTRAR SUB REGISTRAR OFFICE IRITTY KANNUR DIST VS THE DIRECTOR OF INCOME TAX (INTELLIGENCE) KANDAMKOLATHY TOWERS 5 TH FLOOR, M G ROAD KOCHI 682 011 ( APP LICANT ) (RESPONDENT) PAN NO. CFTPS2789L ASSESSEE BY SMT DIVYA RAVINDRAN REVENUE BY SHRI K K JOHN, SR DR DATE OF HEARING 16 TH AUG 2013 DATE OF PRONOUNCEMENT 16 TH AUG 2013 OREER PER N.R.S G A N ESAN,JM : WHEN THE APP EAL WAS TAKEN UP FOR HEARING, SMT DIVY A RAVINDRAN, THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT AN IDENTICAL ISSUE WAS DECIDED BY THIS TRIBUNAL IN THE CASE OF SUB REGISTRAR, KOZHIKODE IN ITA NO.280/COCH/2013 BY AN ORDER DATED 18 TH JULY 2013. WE HAVE H EARD SHRI K K JOHN, SR DR ALSO. 2 THE ONLY ISSUE RAISED IN THIS APPEAL FOR OUR CONSIDERATION IS LEVY OF PENALTY U/S 271FA OF THE ACT. ITA NO 238 & SP - 47/ COCH/ 2013 2 3 AS RIGHTLY SUBMITTED BY THE LD COUNSEL FOR THE ASSESSEE, THIS ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN SRO, KOZHIK ODE (SUPRA) AND THIS TRIBUNAL FOUND THAT THERE IS NO ENABLING PROVISION TO ENTERTAIN THE APPEAL BY THIS TRIBUNAL IN SEC. 253 OF THE ACT. THEREFORE, THIS TRIBUNAL FOUND THAT THE APPEAL FILED BY THE ASSESSEE ON IDENTICAL SET OF FACTS , IS NOT MAINTAINABLE . IN FACT, THIS TRIBUNAL, AFTER CONSIDERING THE RELEVANT PROVISIONS OF THE ACT OBSERVED AT PARAS 4 TO 7 OF ORDER DATED 18.7.2013 AS UNDER: 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE Q UESTION ARISES FOR CONSIDERATION IS WHETHER THIS TRIBUNAL COULD ENTERTAIN AN APPEAL BY THE SUB REGISTRAR, MEPPAYUR - KOZHIKODE AGAINST THE ORDER OF PENALTY U/S 271FA OF THE ACT. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 253 OF THE ACT. SECTION 253 PROVIDES FOR AN APPEAL BEFORE THIS TRIBUNAL AGAINST THE ORDERS MENTIONED THEREIN. FOR THE PURPOSE OF CLARITY, THE PROVISIONS OF SECTION 253 ARE REPRODUCED HEREUNDER: 253(1) : ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOWING ORDERS MAY APPEAL TO THE AP PELLATE TRIBUNAL AGAINST SUCH ORDER: (A) AN ORDER PASSED BY A DEPUTY COMMISSION (APPEALS) BEFORE THE 1 ST 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 ORDE R PASSED BY AN ASSESSING OFFICER UNDER CLAUSE ( C) OF SECTION 158BC, IN RESPECT OF SEARCH INITIATED UNDER SECTION132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION132A, AFTER THE 30 TH DAY OF JUNE, 1995, BUT BEFORE THE 1 ST DA Y OF JANUARY 1997; OR (BA) AN ORDER PASSED BY AN ASSESSING OFFICERS UNDER SUB SECTION (1) OF SECTION 115VZC; OR ( C)AN ORDER PASSED BY A COMMISSIONER UNDER SECTION 12AA OR UNDER CLAUSE (VI) OF SUB - SECTION (5) OF SECTION 80G OR UNDER SECTION 263 OR UNDER SE CTION 271 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 CHIEF COMMISSIONER OR A DIRECTOR GENERAL OR A DIRECTOR UNDER SECTION 272A; OR (C) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER SUB - SECTION *3), OF SECTION 143 OR SECTION 147 IN PURSUANCE OF THE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL OR AN ORDER PASSED UNDER SECTION 154 IN RESPECT OF SUCH ORDER. NOWHERE IN SECTION 253 MENTIONS THE ORDER PASSED BY DIRECTOR OF INCOME TAX (INTELLIGENCE) OR ANY OTHER OFFICER OF THE INCOME TAX DEPARTMENT LEVYING PENALTY U/S ITA NO 238 & SP - 47/ COCH/ 2013 3 271FA IS APPEALABLE BEFORE THIS TRIBUNAL. THIS TRIBUNAL BEING A QUASI JUDICIAL AUTHORITY ESTABLISHED UNDER THE PROVISIONS OF THE INCOME TAX ACT CANNOT TRAVEL BEYOND THE P ROVISIONS OF THE ACT. THEREFORE, UNLESS AND UNTIL AN APPEAL IS SPECIFICALLY PROVIDED SECTION 253 OF THE ACT AGAINST THE ORDER LEVYING PENALTY U/S 271FA, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE PRESENT APPEAL IS NOT MAINTAINABLE BEFORE THIS TRIB UNAL. 5 NOW COMING TO THE DIRECTION GIVEN BY THE DIRECTOR OF INCOME TAX (INTELLIGENCE) IN CLAUSE 7 OF THE DEMAND NOTICE, NO DOUBT THE DIRECTOR OF INCOME TAX (INTELLIGENCE) MENTIONED IN THE DEMAND NOTICE THAT AN APPEAL CAN BE FILED BEFORE THIS TRIBUNAL UND ER PARTY B OF CHAPTER XX OF THE INCOME TAX ACT. IT IS WELL SETTLED PRINCIPLES OF LAW THAT CONSENT OF A LITIGANT PARTY WILL NOT CONFER ANY JURISDICTION OF A JUDICIAL OR QUASI JUDICIAL AUTHORITY UNLESS AND UNTIL IT IS OTHERWISE CONFERRED BY THE LEGISLATURE. THEREFORE, THE CONSENT/DIRECTION OF THE DIRECTOR OF INCOME TAX (INTELLIGENCE) WILL NOT CONFER ANY JURISDICTION ON THIS TRIBUNAL UNLESS SIT IS PROVIDED FOR IN THE INCOME TAX ACT BY THE PARLIAMENT. HENCE, THIS TRIBUNAL COULD NOT ENTERTAIN THE APPEAL FILED BY THE SUB REGISTRAR, MEPPAAYUR - KOZHIKODE, 6 COMING TO THE CONTENTION OF THE LD DR THAT APPEAL IS PROVIDED U/S 246A(Q) OF THE ACT, NO DOUBT, AN ORDER IMPOSING PENALTY UNDER CHAPTER XXI IS APPEALABLE BEFORE THE CIT(A) U/S 246A(Q) OF THE ACT. ADMITTEDLY, SECT ION 271FA FALLS IN CHAPTER XXI OF THE INCOME TAX ACT. THEREFORE, ONE MAY CLAIM THAT AN APPEAL IS PROVIDED U/S 246A(Q) OF THE ACT. WE ARE CONSCIOUS THAT THE CIT(A) IS EQUIVALENT IN RANK THAT OF THE DIRECTOR OF INCOME TAX (INTELLIGENCE), THEREFORE, THE APPEA L BEFORE CIT(A) MAY NOT BE AN EFFECTIVE AND EFFICIOUS REMEDY AVAILABLE TO THE SUB REGISTRAR, MEPPAYUR - KOZHIKODE AGAINST WHOM PENALTY WAS LEVIED. HOWEVER, THIS TRIBUNAL BEING A QUASI JUDICIAL AUTHORITY ESTABLISHED UNDER THE INCOME TAX ACT, CANNOT TRAVEL BEY OND THE PROVISIONS OF SECTION 253 OF THE ACT. THEREFORE, MERELY BECAUSE THE REMEDY AVAILABLE US/ 246A(Q) OF THE ACT MAY NOT BE EFFECTIVE AND EFFICIOUS THAT ALONE WILL NOT GIVE ANY JURISDICTION TO THIS TRIBUNAL TO ENTERTAIN THIS APPEAL. 7 FURTHER, WE ARE O F THE CONSIDERED OPINION THAT WHEN THE PROVISIONS OF SECTION 271FA WAS INTRODUCED IN THE STATUTE BOOK BY THE FINANCE ACT, 2004 WITH EFFECT FROM 1.4.2005 THE CONSEQUENTIAL AMENDMENT TO SECTION 253 WAS OMITTED TO BE CARRIED OUT. THIS OMISSION MAY BE UNINTEND ED. ONE MAY ARGUE THAT AN APPEAL IS PROVIDED AGAINST THE ORDER OF PENALTY U/S 271 IN 253(1)(A) AND 253(10(C ) OF THE ACT, THEREFORE, ALL BRANCHES OF SECTION 271 I.E. FROM 271A TO 271G ARE INCLUDED IN SECTION. THIS ARGUMENT MAY NOT BE CORRECT BECAUSE SEC TION 271 IS AN INDEPE3NDENT SECTION AND IT HAS ITS OWN SUB SECTIONS. SECTIONS 271A TO 271G ARE NOT SUB SECTIONS UNDER SECTION 271 AND THEY ARE INDEPENDENT SECTIONS BY THEMSELVES. THIS IS OBVIOUS FROM SECTION 253(1)(A) AND 253(1)( C) ITSELF. THE LEGISLATURE HAS MENTIONED SECTIONS 271 AND 271A SEPARATELY IN SECTION 253(1)(A) AND 253(1)( C) OF THE ACT THEREFORE, THE LEGISLATURE TREATED SECTIONS 271 AND 271A AS SEPARATE AND INDEPENDENT SECTIONS. IN OTHER WORDS, SECTIONS 271A TO 271G ARE INDEPENDENT AND SEPARAT E SECTIONS AND IT IS NOT PART/BRANCH OF SECTIONS 271 OF THE ACT. THEREFORE, ARGUMENT, IF ANY THAT SECTION 271FA IS PART OF SECTION 271 IS NOT CORRECT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION HAT SECTION 271FA IS SEPARATE AND INDEPENDENT OF SECTION 271 A ND THEREFORE, THE REFERENCE OF SECTION 271 IN SECTION 253(1)(A) OR 253(1)( C) MAY NOT BE INCLUDED SECTION 271FA. AS ALREADY OBSERVED, THE OMISSION TO INCLUDE SECTION 271FA IN SECTION 253 MAY BE UNINTENDED. THEREFORE, IT IS ITA NO 238 & SP - 47/ COCH/ 2013 4 OPEN TO THE DEPARTMENT TO BRING T O THE NOTICE OF THE CONCERNED AUTHORITY ABOUT THE OMISSION TO PROVIDE APPEAL BEFORE THE TRIBUNAL FOR MAKING CONSEQUENTIAL AMENDMENT TO SECTION 253 OF THE ACT IN CASE THE DEPARTMENT FOUND THAT THE OMISSION IS UNINTENDED. 4 IN VIEW OF THE ABOVE, THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT THE APPEAL FILED BY THE SUB REGISTRAR, IRITTY, KANNUR IS NOT MAINTAINABLE BEFORE THIS TRIBUNAL. HOWEVER , THE SUB REGISTRAR IS AT LIBERTY TO CHALLENGE THE IMPUGNED ORDER PASSED BY THE DIRECTOR OF INCOME TAX (INTELLIGEN CE ) LEVYING PENALTY U/S 2171FA OF THE ACT BEFORE THE APPROPRIATE FORUM IN A MANNER KNOWN TO LAW. WITH THE ABOVE OBSERVATIONS, THE APPEAL OF THE SUB REGISTRAR, IRITT Y , KANNUR IS DISMISSED. CONSEQUENTLY, THE STAY PETITION IN SP NO. 47/COCH/2013 IS ALSO DIS MISSED. 5 IN THE RESULT, THE APPEAL AND THE STAY PETITION FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING I.E. 16 TH AUG 2013. SD/ - SD/ - ( B.R. BASKARAN) ( N .R.S GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCH IN: DATED 16 TH , AUG 2013 RAJ* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT , KANNUR 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN