The Branch manager, Palakkad V. ITO(Intelligence), Cochin

ITA 346/COCH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2600 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 28-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Recovery proceedings

Judgement Text

1 ITA NO.346/COCH/2013 S.P. 54/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. 346/COCH/2013 & S.P. NO.54/COCH/2013) (ASSESSMENT YEAR 2011-12) THE BRANCH MANAGER VS THE ITO (INTELLIGENCE) PUNJAB NATIONAL BANK COCHIN KALPATHY, PALAKKAD DIST PAN : CHNN0075F (APPELLANT) (RESPONDENT) APPELLANT BY : WRITTEN SUBMISSION RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 26-07-2013 DATE OF PRONOUNCEMENT : 26-07-2013 O R D E R PER N.R.S. GANESAN (JM) THE BRANCH MANAGER, PUNJAB NATIONAL BANK FILED THE PRESENT APPEAL AGAINST THE PENALTY LEVIED BY THE JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE) U/S 272A(2)(C) OF THE INCOME-TAX ACT, 1961. A STAY PETITION IS ALSO FILED FOR SEEKING STAY OF RECOVERY PROCEEDINGS. 2 ITA NO.346/COCH/2013 S.P. 54/COCH/2013 2. WHEN THE STAY PETITION WAS TAKEN UP FOR HEARING TODAY NO ONE APPEARED ON BEHALF OF THE BRANCH MANAGER, PUNJAB NA TIONAL BANK. HOWEVER, A REQUEST RECEIVED FROM THE BRANCH MANAGER FOR WITHDRAWAL OF THE APPEAL BY FAX IS PLACED ON RECORD BY THE REGIST RY. WE HAVE CAREFULLY GONE THROUGH THE PETITION FILED BY THE BRANCH MANAG ER FOR WITHDRAWAL OF THE APPEAL. THE BRANCH MANAGER INTENDS TO WITHDRAW THE APPEAL SINCE HE FILED THE APPEAL DIRECTLY BEFORE THIS TRIBUNAL WITHOUT FI LING APPEAL BEFORE THE CIT(A). NO DOUBT ORDER PASSED BY THE JOINT DIRECTO R IS APPEALABLE BEFORE THE CIT(A). THEREFORE, THE APPEAL FILED DIRECTLY B EFORE THIS TRIBUNAL IS NOT MAINTAINABLE. 3. IT MAY NOT BE OUT OF PLACE TO POINT OUT THAT PEN ALTY U/S 272A(2)(C) CAN BE LEVIED BY AN INCOME-TAX AUTHORITY IN THE COURSE OF THE PROCEEDINGS NOT LOWER IN RANK THAN A JOINT COMMISSIONER OR A JOINT DIRECTOR OR A COMMISSIONER OR A CHIEF COMMISSIONER. IN THE CASE BEFORE US, THE PENALTY WAS LEVIED BY THE JOINT DIRECTOR. IN SECTI ON 246A AN APPEAL IS PROVIDED UNDER CLAUSE (O) AGAINST AN ORDER PASSED B Y A DEPUTY COMMISSIONER OR DEPUTY DIRECTOR IMPOSING PENALTY U/ S 272A. IN SECTION 272A(3)(A) AND 272A(3)(C), THE WORD DEPUTY IS OMI TTED AND JOINT WAS INCORPORATED BY FINANCE (NO.2) ACT, 1998 WITH EFFEC T FROM 01-10-1998. THEREFORE, THE PENALTY U/S 272A HAS TO BE LEVIED BY AN OFFICER NOT LOWER 3 ITA NO.346/COCH/2013 S.P. 54/COCH/2013 THAN A JOINT DIRECTOR OR JOINT COMMISSIONER OF INCO ME-TAX. CORRESPONDINGLY, IN SECTION 246A(O), THE CONSEQUENT IAL AMENDMENT DELETING THE WORD DEPUTY AND INCORPORATING THE WO RD JOINT WAS NOT MADE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION T HAT A CONSEQUENTIAL AMENDMENT OUGHT TO HAVE BEEN MADE BY THE LEGISLATUR E. THIS OMISSION MAY BE UNINTENDED. THEREFORE, IT IS OPEN TO THE DE PARTMENT TO BRING THE SAME TO THE NOTICE OF THE CONCERNED AUTHORITY TO MA KE NECESSARY AMENDMENT, IF THEY ARE ADVISED SO. EVEN OTHERWISE, AN ORDER IMPOSING PENALTY U/S 272A(2)(C) FALLS UNDER CHAPTER XXI, THE REFORE, THIS PENALTY LEVIED BY THE JOINT COMMISSIONER, WHO IS LOWER IN R ANK THAN CIT(A) IS APPEALABLE BEFORE THE CIT(A) U/S 246A(Q). THEREFOR E, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT AN APPEAL HAS TO BE FIL ED BEFORE THE CIT(A) INSTEAD OF DIRECTLY FILING THE APPEAL BEFORE THIS T RIBUNAL. IN VIEW OF THE ABOVE, THE PERMISSION SOUGHT BY THE BRANCH MANAGER TO WITHDRAW THE APPEAL IS GRANTED. ACCORDINGLY, THE APPEAL IS DISM ISSED AS WITHDRAWN. CONSEQUENTLY, THE STAY PETITION IN S.P. NO.54/COCH/ 2013 IS ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH JULY, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 26 TH JULY, 2013 PK/-