The Sub Registrar, Shimla V. Asstt. Director of Income Tax (CIB), Chandigarh

ITA 384/CHANDI/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9860 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: RAJEEV SHARMA; SSH ROHIT KAURA
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NOS. 383 TO 386/CHD/2016 ASSESSMENT YEARS: 2005-06 TO 2008-09 THE SUB-REGISTRAR, VS. THE DIRECTOR OF INCOME TAX (CIB), TEHSIL OFFICE, KUMARSAIN, CHANDIGARH RAMPUR BUSHAIR, DISTT. SHIMLA H.P. PAN NO. ABIPN8305Q (APPELLANT) (RESPONDENT) APPELLANT BY : S/SH. ROHIT KAURA & RAJEEV SHARMA RESPONDENT BY : SH. S.K. MITTAL DATE OF HEARING : 22.06.2016 DATE OF PRONOUNCEMENT : 22.06.2016 ORDER THESE APPEALS BY THE ASSESSEE ARE AGAINST RESPECTIV E ORDERS OF CIT(A) FOR THE CONCERNED ASSESSMENT YEARS. THE ISSUES ARE COMM ON AND THE APPEALS WERE HEARD TOGETHER AND THESE ARE BEING DISPOSED OFF BY THIS COMMON ORDER. THE COMMON GROUND OF APPEAL RAISED IS THAT LD. CIT(A) H AS GROSSLY ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPEALS AGAINST THE OR DER OF DIRECTOR OF INCOME TAX (CIB) IMPOSING PENALTY U/S 271FA IS NOT MAINTAINABL E. 2. AT THE OUTSET, IN THIS CASE, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN IDENTICAL SITUATION THIS TRIBUNAL IN ITA NOS. 375 T O 379/CHD/2011 IN THE CASES OF SUB-REGISTRAR, GHANAUR, PATIALA VS DIT (CIB), CH ANDIGARH VIDE ORDER DATED 27.9.2011 HAS ADJUDICATED SIMILAR ISSUE AS UNDER;- 2 4. GROUND NO.1 RAISED IN ALL THE APPEALS IS AGAINS T THE PENALTY LEVIED UNDER SECTION 271FA OF THE ACT. THE SAID PENALTY WAS LEVIED BY THE DIRECTOR OF INCOME TAX(CI B), CHANDIGARH VIDE ORDER PASSED UNDER SECTION 271FA OF THE ACT. THE ASSESSEE HAS FILED THE PRESENT APPEALS DI RECTLY BEFORE US. NO APPEAL HAS BEEN FILED BEFORE THE CIT (A) AGAINST THE ORDER OF THE DIRECTOR OF INCOME TAX (CI B), CHANDIGARH. 5. WE FIND THAT SIMILAR ISSUE AROSE BEFORE THE TRIB UNAL IN THE CASE OF THE SUB REGISTRAR, TEHSIL OFFICE, KH AMANO, FATEHGARH SAHIB VS. DIRECTOR OF INCOME TAX (CIB), CHANDIGARH IN I.T.A.NOS. 1184,1185,1186 & 1189/CHD/2010 FOR ASSESSMENT YEARS 2005-06, 200607 , 2008-09 AND 2007-08 WHERE VIDE ORDER DATED 22.2.201 1 IT WAS HELD AS UNDER : 5. WE HAVE HEARD THE PARTIES AND CONSIDERED THE FACTS AND MATERIALS ON RECORD. FIRST OF ALL, WE HA VE TO DECIDE WHETHER THE APPELLANT CAN FILE AN APPEAL BEFORE THE TRIBUNAL DIRECTLY WITHOUT FILING OF APPE AL BEFORE THE CIT(APPEALS). IN THIS CONNECTION, LEARNED COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT NOW THE CBDT HAS CLARIFIED IN F.NO.279/M-31/2010-SO(ITJ) ON THIS POINT. HE ALSO FILED ON RECORD A COPY OF PAGE NO. 5 & 6 OF THE SAI D NOTIFICATION. WE FIND THAT IN THE ABOVE NOTIFICATI ON, THE CBDT HAS CLARIFIED THAT U/S 246A(1)(Q), OF THE INCOME-TAX ACT, THE CIT(APPEALS) HAS POWERS TO DISPOSE OF ANY PENALTY LEVIED U/S 271FA AND THAT THERE IS NO LEGAL BAR ON CIT(APPEALS) PASSING AN APPEAL ORDER AGAINST PENALTY ORDER PASSED BY THE DIT (CIB), WHO IS EQUIVALENT TO THE RANK OF CIT(APPEALS). IT HAS ALSO BEEN MENTIONED IN THE ABOVE CIRCULAR THAT WHETHER CIT(APPEALS) AND DIT(CIB) ARE EQUIVALENT IN RANK OR NOT IS AN ADMINISTRATIVE ISSUE AND IT HAS NOTHING TO DO WITH THE FACT THAT THE CIT(APPEALS) CAN HEAR AN APPEAL FILED AGAINST AN ORDER PASSED U/S 271FA OF THE INCOME TAX ACT BY DIRECTOR OF INCOME TAX(CIB). 3 FURTHER IT IS CLARIFIED IN THE SAID CIRCULAR THAT U /S 246A(1)(Q) OF INCOME TAX ACT, CIT(APPEALS) HAS POWERS TO HEAR AN APPEAL FILED AGAINST AN ORDER PASSED UNDER CHAPTER XXI OF THE INCOME TAX ACT, 1961. 6. IN VIEW OF THE ABOVE CLARIFICATION GIVEN BY THE CBDT, IN OUR CONSIDERED OPINION, THE APPELLANT SHOULD HAVE FILED AN APPEAL BEFORE THE CIT(APPEALS) BEFORE FILING AN APPEAL DIRECTLY BEFORE THIS TRIBUNAL. IN VIEW OF THIS POSITION, WE ARE DISMISSING ALL THE FOUR APPEALS FILED BY THE APPELLANT. 6. THE ISSUE RAISED IN THE PRESENT APPEAL IS IDENTI CAL TO THE ISSUE RAISED BEFORE THE TRIBUNAL (SUPRA) AND FO LLOWING THE ORDER DATED 22.2.2011 WE HOLD THAT THE ASSESSEE SHOULD HAVE FILED AN APPEAL BEFORE THE CIT(A) BEFOR E FILING AN APPEAL DIRECTLY BEFORE THIS TRIBUNAL. IN VIEW OF THE AFORESAID ORDER OF THE TRIBUNAL, WE DISMISS THE PRESENT APPEALS FILED BY THE ASSESSEE. 7. IN THE RESULT, ALL THE FIVE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. 3. REFERRING TO THE AFORESAID DECISION, LD. CONTEND ED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE PRESENT CASE, THE AS SESSEE HAS FILED APPEALS BEFORE THE LD. CIT(A) WHO HAS DISMISSED THE ISSUES AS NOT MAINTAINABLE BEFORE HIM. HOWEVER, IN THE LIGHT OF THE ABOVE DECISION OF THE TRIBUNAL, LD. COUNSEL OF THE ASSESSEE PLEADED THAT THE MATTER BE REMITTED TO THE FILE OF THE LD. CIT(A) AND HE MAY BE DIRECTED TO ADJUDICATE THE ISSUE BEFORE HIM. PER CONTRA LD. DR SUBMITTED THAT DIT (CIB) IS AN OFFICER OF EQUIVALEN T RANK OF CIT(A) AND, HENCE, APPEAL AGAINST THE ORDER OF DIT (CIB) CANNOT BE PRE FERRED BEFORE LD. CIT(A). 4. UPON CAREFUL CONSIDERATION, I FIND THAT ON IDENT ICAL ISSUE THE ITAT CHANDIGARH BENCH IN SIMILAR APPEAL HELD THAT APPEAL WAS MAINTAINABLE BEFORE LD. CIT(A). IT IS NOT THE CASE OF THE REVENUE THAT HON'BLE JURISDICTIONAL HIGH 4 COURT HAS REVERSED THE DECISION OF THE ITAT. IN TH ESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE, I HO LD THAT LD. CIT(A) SHOULD ADJUDICATE UPON THE ISSUE RAISED BEFORE HIM. ACCOR DINGLY, THE ISSUE IN THE APPEAL IS REMITTED TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER ON THE MERITS AFTER GIVING TH E ASSESSEE AN OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THESE APPEALS BY THE ASSESSEE STA ND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.06.2016. SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBER DATED : 22 ND JUNE, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR