SRO, Calicut V. Director of Income-tax(intelligence), Cochin

ITA 280/COCH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2628 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 09-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: T V RANJIT KUMAR
• Section: 80G; 12AA; 147; 6; 263; 132; 154

Judgement Text

1 ITA NO. 280/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 280/COCH/2013 (ASSESSMENT YEAR 2010-11) & S.P. NO.50/COCH/2013 (ARISING OUT OF I.T.A NO. 280/COCH/2013) (ASSESSMENT YEAR 2010-11) SRO, MEPPAYUR-KOZHIKODE VS DIT (INTELLIGENCE) PAN : BBAPG8639M KOCHI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.V. RANJIT KUMAR RESPONDENT BY : SHRI M ANIL KUMAR, C.I.T. SMT. S VIJAYAPRABHA DATE OF HEARING : 16-07-2013 DATE OF PRONOUNCEMENT : 18-07-2013 O R D E R PER N.R.S. GANESAN (JM) THE SUB REGISTRAR, MEPPAYUR-KOZHIKODE HAS FILED TH E APPEAL AGAINST THE ORDER OF THE DIRECTOR OF INCOME-TAX (IN TELLIGENCE) DATED 11-03- 2013 LEVYING PENALTY U/S 271FA OF THE ACT. 2. ON A QUERY FROM THE BENCH AS TO HOW THE APPEAL I S MAINTAINABLE BEFORE THIS TRIBUNAL AGAINST THE PENALTY LEVIED BY THE DIRECTOR INCOME-TAX (INTELLIGENCE), THE LD.COUNSEL CLARIFIED THAT AT CO LUMN 7 OF THE DEMAND NOTICE 2 ITA NO. 280/COCH/2013 ISSUED BY THE DIRECTOR OF INCOME-TAX (INTELLIGENCE) IT WAS MENTIONED THAT AN APPEAL MAY BE FILED UNDER PART B OF CHAPTER XX OF T HE INCOME-TAX ACT TO THE INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH WIT HIN 60 DAYS OF THE RECEIPT OF THAT ORDER IN FORM NO.36. IN VIEW OF TH IS DIRECTION OF THE DIRECTOR OF INCOME-TAX (INTELLIGENCE), THE APPEAL WAS FILED. THE LD.COUNSEL FURTHER CLARIFIED THAT U/S 253 OF THE INCOME-TAX ACT, NO AP PEAL IS PROVIDED BEFORE THIS TRIBUNAL AGAINST THE ORDER LEVYING PENALTY U/S 271FA OF THE ACT. 3. SHRI M ANIL KUMAR, THE LD.DR ALSO HEARD. THE LD .DR SUBMITTED THAT SECTION 271FA WAS INTRODUCED IN THE STATUTE BOOK FO R THE FIRST TIME BY FINANCE ACT, 2004 WITH EFFECT FROM 01-04-2005. HOW EVER, LEGISLATURE OMITTED TO PROVIDE AN APPEAL BEFORE THE TRIBUNAL IN SECTION 253 OF THE ACT. REFERRING TO SECTION 246A OF THE ACT, THE LD.DR SUB MITTED THAT UNDER CLAUSE (Q), AN ORDER IMPOSING PENALTY UNDER CHAPTER XXI IS APPEALABLE BEFORE THE CIT(A). ADMITTEDLY, SECTION 271FA FALLS UNDER CHAP TER XXI OF THE ACT. THEREFORE, UNLESS IT IS OTHERWISE PROVIDED IN SECTI ON 253, THE APPEAL HAS TO BE FILED ONLY BEFORE THE CIT(A) AND NOT BEFORE THIS TRIBUNAL. ON A QUERY FROM THE BENCH WHEN THE CIT(A) IS EQUIVALENT IN RAN K AS THAT OF THE DIRECTOR OF INCOME-TAX (INTELLIGENCE) HOW THE APPEAL FILED U NDER SECTION 246A(Q) OF THE ACT WOULD BE EFFECTIVE, THE LD.DR SUBMITTED THA T IN THE ABSENCE OF CONSEQUENTIAL AMENDMENT IN SECTION 253 OF THE ACT O N INTRODUCTION OF SECTION 271FA, THIS TRIBUNAL CANNOT ENTERTAIN THIS APPEAL. 3 ITA NO. 280/COCH/2013 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON EITHER S IDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE QUES TION ARISES FOR CONSIDERATION IS WHETHER THIS TRIBUNAL COULD ENTERT AIN 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 PROVIS IONS OF SECTION 253 OF THE ACT. SECTION 253 PROVIDES FOR AN APPEAL BEFORE THIS TRIBUNAL AGAINST THE ORDERS MENTIONED THEREIN. FOR THE PURPOSE OF C LARITY, THE PROVISIONS OF SECTION 253 ARE REPRODUCED HEREUNDER: 253(1) ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOW ING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH O RDER (A) AN ORDER PASSED BY A DEPUTY COMMISSIONER (APPEA LS) 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 ORDER PASSED BY AN ASSESSING OFFICER UNDER C LAUSE (C) OF SECTION 158BC, IN RESPECT OF SEARCH INITIATED UN DER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A, AFTER THE 30 TH DAY OF JUNE, 1995, BUT BEFORE THE 1 ST DAY OF JANUARY, 1997; OR (BA) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER SUB- SECTION (1) OF SECTION 115VZC; OR 4 ITA NO. 280/COCH/2013 (C) AN ORDER PASSED BY A COMMISSIONER UNDER SECTIO N 12AA OR UNDER CLAUSE (VI) OF SUB-SECTION (5) OF SE CTION 80G OR UNDER SECTION 263 OR UNDER SECTION 271 OR U NDER SECTION 272A OR AN ORDER PASSED BY HIM UNDER SECTI ON 154 AMENDING HIS ORDER UNDER SECTION 263 OR AN ORD ER PASSED BY A CHIEF COMMISSIONER OR A DIRECTOR GENER AL OR A DIRECTOR UNDER SECTION 272A; OR (D) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER SUB- SECTION (3), OF SECTION 143 OR SECTION 147 IN PURS UANCE 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 INCO ME-TAX DEPARTMENT LEVYING PENALTY U/S 271FA IS APPEALABLE BEFORE THIS TRIBUNA L. THIS TRIBUNAL BEING A QUASI JUDICIAL AUTHORITY ESTABLISHED UNDER THE PR OVISIONS OF THE INCOME- TAX ACT CANNOT TRAVEL BEYOND THE PROVISIONS OF THE ACT. THEREFORE, UNLESS AND UNTIL AN APPEAL IS SPECIFICALLY PROVIDED IN SEC TION 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 TRIBUNAL. 5. NOW COMING TO THE DIRECTION GIVEN BY THE DIRECTO R OF INCOME-TAX (INTELLIGENCE) IN CLAUSE 7 OF THE DEMAND NOTICE, NO DOUBT, THE DIRECTOR OF INCOME-TAX (INTELLIGENCE) MENTIONED IN THE DEMAND N OTICE THAT AN APPEAL 5 ITA NO. 280/COCH/2013 CAN BE FILED BEFORE THIS TRIBUNAL UNDER PART B OF C HAPTER XX OF THE INCOME- TAX ACT. IT IS WELL SETTLED PRINCIPLES OF LAW THAT CONSENT OF A LITIGANT PARTY WILL NOT CONFER ANY JURISDICTION ON A JUDICIAL OR QUASI JUDICIAL AUTHORITY UNLESS AND UNTIL IT IS OTHERWISE CONFERRED BY THE LEGISLAT URE. THEREFORE, THE CONSENT / DIRECTION OF THE DIRECTOR OF INCOME-TAX ( INTELLIGENCE) WILL NOT CONFER ANY JURISDICTION ON THIS TRIBUNAL UNLESS IT IS PROVIDED FOR IN THE INCOME-TAX ACT BY THE PARLIAMENT. HENCE, THIS TRIB UNAL COULD NOT ENTERTAIN THE APPEAL FILED BY THE SUB REGISTRAR, MEPPAYUR-KOZ HIKODE. 6. COMING TO THE CONTENTION OF THE LD.DR THAT APPEA L IS PROVIDED U/S 246A(Q) OF THE ACT, NO DOUBT, AN ORDER IMPOSING PEN ALTY UNDER CHAPTER XXI IS APPEALABLE BEFORE THE CIT(A) UNDER SECTION 246A( Q) OF THE ACT. ADMITTELDY, SECTION 271FA FALLS IN CHAPTER XXI OF T HE INCOME-TX 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 EQUIVALEN T IN RANK THAT OF THE DIRECTOR OF INCOME-TAX (INTELLIGENCE), THEREFORE, THE APPEAL BEFORE CIT(A) MAY NOT BE AN EFFECTIVE AND EFFICIOUS REMEDY AVAILA BLE TO THE SUB REGISTRAR, MEPPAYUR-KOZHIKODE AGAINST WHOM PENALTY WAS LEVIED. HOWEVER, THIS TRIBUNAL BEING A QUASI JUDICIAL AUTHO RITY ESTABLISHED UNDER THE INCOME-TAX ACT, CANNOT TRAVEL BEYOND THE PROVIS IONS OF SECTION 253 OF THE ACT. THEREFORE, MERELY BECAUSE THE REMEDY AVAI LABLE U/S 246A(Q) OF 6 ITA NO. 280/COCH/2013 THE ACT MAY NOT BE EFFECTIVE AND EFFICIOUS THAT ALO NE WILL NOT GIVE ANY JURISDICTION TO THIS TRIBUNAL TO ENTERTAIN THIS APP EAL. 7. FURTHER, WE ARE OF THE CONSIDERED OPINION THAT W HEN THE PROVISIONS OF SECTION 271FA WAS INTRODUCED IN THE STATUTE BOOK BY THE FINANCE ACT, 2004 WITH EFFECT FROM 01-04-2005 THE CONSEQUENTIAL AMEND MENT TO SECTION 253 WAS OMITTED TO BE CARRIED OUT. THIS OMISSION MAY B E UNINTENDED. ONE MAY ARGUE THAT AN APPEAL IS PROVIDED AGAINST THE OR DER OF PENALTY U/S 271 IN 253(1)(A) AND 253(1)(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 SECTION 271 IS AN INDEPENDEN T SECTION AND IT HAS ITS OWN SUB SECTIONS. SECTIONS 271A TO 271G ARE NOT SU B SECTIONS UNDER SECTION 271 AND THEY ARE INDEPENDENT SECTIONS BY TH EMSELVES. THIS IS OBVIOUS FROM SECTION 253(1)(A) AND 253(1)(C) ITSELF . THE LEGISLATURE HAS MENTIONED SECTIONS 271 AND 271A SEPARATELY IN SECTI ON 253(1)(A) AND 253 (1)(C) OF THE ACT. THEREFORE, THE LEGISLATURE TREA TED SECTIONS 271 AND 271A AS SEPARATE AND INDEPENDENT SECTIONS. IN OTHER WOR DS, SECTIONS 271A TO 271G ARE INDEPENDENT AND SEPARATE SECTIONS AND IT I S NOT PART / BRANCH OF SECTIONS 271 OF THE ACT. THEREFORE, ARGUMENT, IF A NY, THAT SECTION 271FA IS PART OF SECTION 271 IS NOT CORRECT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT SECTION 271FA IS SEPARATE AND INDEPEND ENT OF SECTION 271 AND THEREFORE, THE REFERENCE OF SECTION 271 IN SECTION 253(1)(A) OR 253(1)(C) 7 ITA NO. 280/COCH/2013 MAY NOT BE INCLUDED SECTION 271FA. AS ALREADY OBSE RVED, THE OMISSION TO INCLUDE SECTION 271FA IN SECTION 253 MAY BE UNINTEN DED. THEREFORE, IT IS OPEN TO THE DEPARTMENT TO BRING TO THE NOTICE OF TH E CONCERNED AUTHORITY ABOUT THE OMISSION TO PROVIDE APPEAL BEFORE THE TRI BUNAL FOR MAKING CONSEQUENTIAL AMENDMENT TO SECTION 253 OF THE ACT I N CASE THE DEPARTMENT FOUND THAT THE OMISSION IS UNINTENDED. 8. IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF T HE SUB REGISTRAR, MEPPAYUR-KOZHIKODE IS DISMISSED AS NOT MAINTAINABLE BEFORE THIS TRIBUNAL. HOWEVER, IT IS MADE CLEAR THAT IT IS OPE N TO THE SUB REGISTRAR, MEPPAYUR-KOZHIKODE TO CHALLENGE THE ORDER PASSED BY THE DIRECTOR OF INCOME-TAX (INTELLIGENCE) LEVYING PENALTY U/S 271FA OF THE ACT BEFORE THE APPROPRIATE FORUM IN A MANNER KNOWN TO LAW. 9. WITH THE ABOVE OBSERVATIONS, THE APPEAL OF THE S UB REGISTRAR, MEPPAYUR-KOZHIKODE IS DISMISSED. CONSEQUENTLY, THE STAY PETITION IN S.A. NO.50/COCH/2013 IS ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH JULY, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 18 TH JULY, 2013 PK/- 8 ITA NO. 280/COCH/2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX BY ORDER 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH