Kumbalanghi Service Co- Bank Ltd, Cochin V. Jt Director of Income Tax (Intelligence), Cochin

ITA 443/COCH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81418 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 10-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: V N KAMATH
• Keywords: Reasonable cause
• Section: 133(6)

Judgement Text

1 ITA NO.443/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) I.T.A NO. 443/COCH/2014 KUMBALANGHI SERVICE CO-OPERATIVE VS JOINT DIRECTO R OF INCOME-TAX BANK LTD, NO.762, KUMBALANGHI (INTELLIGENCE), KOC HI KOCHI 682 007 PAN : AACAT1425D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.N. KAMATH, ADV RESPONDENT BY : SHRI K.K. JOHN DATE OF HEARING : 02-12-2014 DATE OF PRONOUNCEMENT : 05-12-2014 O R D E R PER N.R.S. GANESAN (JM) CHALLENGING THE CORRECTNESS OF THE ORDER PASSED BY THE JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE), KOCHI DATED 16-07-201 4 LEVYING PENALTY U/S 272A(2)(C) OF THE ACT FOR NOT FURNISHING THE INFORM ATION CALLED FOR U/S 133(6) OF THE ACT, THE ASSESSEE HAS FILED THE PRESENT APPE AL BEFORE THIS TRIBUNAL. 2. WHEN THE APPEAL WAS TAKEN UP FOR HEARING ON A QU ERY FROM THE BENCH AS TO HOW THE APPEAL IS MAINTAINABLE BEFORE T HIS TRIBUNAL AGAINST THE ORDER OF THE JOINT DIRECTOR LEVYING PENALTY U/S 272 A(2)(C) OF THE ACT DIRECTLY 2 ITA NO.443/COCH/2014 WITHOUT APPROACHING THE CIT(A), THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE NOTICE OF DEMAND ISSUED BY THE JOINT DI RECTOR OF INCOME-TAX (INTELLIGENCE) IN FORM 7 AT COLUMN NO.7 IT HAS BEEN STATED THAT THE ASSESSEE MAY FILE AN APPEAL AGAINST THE ORDER BEFORE THE INC OME-TAX APPELLATE TRIBUNAL, COCHIN BENCH IN FORM NO.36. IN VIEW OF T HIS DIRECTION OF THE JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE), THE APPEAL I S FILED DIRECTLY BEFORE THIS TRIBUNAL. 3. ON THE CONTRARY, SHRI K.K. JOHN, THE LD.DR SUBMI TTED THAT U/S 246A(O) OF THE ACT, AN ORDER PASSED BY THE DEPUTY C OMMISSIONER OR DEPUTY DIRECTOR IMPOSING PENALTY U/S 272A IS APPEAL ABLE BEFORE THE COMMISSIONER (APPEALS). REFERRING TO EXPLANATION T O SECTION 246A, THE LD.DR SUBMITTED THAT THE POST OF DEPUTY COMMISSIONE R HAS BEEN RE- DESIGNATED AS JOINT COMMISSIONER AND THE POST OF DE PUTY DIRECTOR HAS BEEN REDESIGNATED AS JOINT DIRECTOR AND THE REFEREN CE IN SUB SECTION (O) OF SECTION 246A FOR DEPUTY COMMISSIONER AND DEPUTY DIR ECTOR SHALL BE SUBSTITUTED BY JOINT COMMISSIONER OR JOINT DIRECTOR RESPECTIVELY. THEREFORE, AN ORDER PASSED BY THE JOINT COMMISSIONE R OR JOINT DIRECTOR SHALL BE APPEALABLE BEFORE THE CIT(A). SINCE ADMIT TEDLY, THE ASSESSEE HAS NOT FILED ANY APPEAL BEFORE THE COMMISSIONER (APPEA LS), THIS APPEAL IS NOT MAINTAINABLE. 3 ITA NO.443/COCH/2014 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHT LY SUBMITTED BY THE LD.DR, SECTION 246A(O) OF THE ACT PROVIDES FOR AN A PPEAL BEFORE THE CIT(A) AGAINST AN ORDER PASSED BY THE DEPUTY COMMISSIONER OR DEPUTY DIRECTOR IMPOSING PENALTY U/S 272A OF THE ACT. EXPLANATION TO SECTION 246A CLARIFIES THAT AFTER THE FIRST DAY OF OCTOBER, 1998 THE POST OF DEPUTY COMMISSIONER AND THE DEPUTY DIRECTOR HAS BEEN REDESIGNATED AS JO INT COMMISSIONER AND JOINT DIRECTOR RESPECTIVELY AND THE REFERENCE M ADE IN SECTION 246A FOR DEPUTY COMMISSIONER AND DEPUTY DIRECTOR SHALL BE SU BSTITUTED BY THE JOINT COMMISSIONER AND JOINT DIRECTOR RESPECTIVELY. IN VIEW OF THE ABOVE, THE ORDER PASSED BY THE JOINT DIRECTOR (INTELLIGENC E) LEVYING PENALTY U/S 272A(2)(C) IS APPEALABLE BEFORE THE COMMISSIONER (A PPEALS). 5. WE HAVE ALSO CAREFULLY GONE THROUGH THE PROVISIO NS OF SECTION 253 OF THE INCOME-TAX ACT. SECTION 253(1)(C) PROVIDES FOR AN APPEAL BEFORE THE INCOME-TAX APPELLATE TRIBUNAL AGAINST AN ORDER PASS ED BY THE COMMISSIONER OF INCOME-TAX U/S 272A OF THE ACT. IN THIS CASE, ADMITTEDLY, THE ORDER IS PASSED BY JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE); THEREFORE, THE APPEAL HAS TO BE NECESSARILY FILED BEFORE THE C OMMISSIONER (APPEALS) AT THE FIRST INSTANCE. 4 ITA NO.443/COCH/2014 6. THE CONTENTION OF THE ASSESSEE BEFORE THIS TRIBU NAL IS THAT AT COLUMN 7 OF FORM 7, I.E. NOTICE OF DEMAND ISSUED BY THE JO INT DIRECTOR OF INCOME- TAX (INTELLIGENCE) DATED 16-07-2014 SAYS THAT AN AP PEAL HAS TO BE PREFERRED BEFORE THE INCOME-TAX APPELLATE TRIBUNAL. THIS TRI BUNAL IS UNABLE TO ACCEPT THE CONTENTION OF THE LD.COUNSEL FOR THE ASS ESSEE. IT IS WELL SETTLED PRINCIPLES OF LAW THAT A PARTY TO THE LITIGATION, V IZ. THE JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE) CANNOT DECIDE THE APPELLA TE FORUM. IT IS FOR THE PARLIAMENT TO DECIDE THE APPELLATE FORUM TO ENTERTA IN THE APPEAL AGAINST A PARTICULAR ORDER. ONCE THE PARLIAMENT PROVIDES FOR AN APPEAL AGAINST THE ORDER PASSED BY THE JOINT DIRECTOR OF INCOME-TAX BE FORE THE COMMISSIONER (APPEALS), THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE) CANNOT CONFER ANY JURI SDICTION ON THIS TRIBUNAL BY DIRECTING THE ASSESSEE TO FILE APPEAL BEFORE THI S TRIBUNAL. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE OBSERVATION MADE BY THE JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE) AT COLU MN NO.7 OF THE DEMAND NOTICE IN FORM 7 IS BEYOND HIS JURISDICTION. THERE FORE, THE APPEAL FILED BY THE ASSESSEE BEFORE THIS TRIBUNAL IS NOT MAINTAINAB LE. 7. IT IS MADE CLEAR THAT IT IS OPEN TO THE ASSESSEE TO FILE APPEAL BEFORE THE CONCERNED COMMISSIONER (APPEALS) AGAINST THE IM PUGNED ORDER, IF SO ADVISED. IF SUCH AN APPEAL IS FILED, THE CIT(A) MA Y CONSIDER THE PERIOD OF PENDENCY OF APPEAL BEFORE THIS TRIBUNAL AS REASONAB LE CAUSE IN NOT FILING 5 ITA NO.443/COCH/2014 THE APPEAL BEFORE COMMISSIONER (APPEALS). SINCE TH E ASSESSEE HAS APPROACHED THE WRONG FORUM DUE TO OBSERVATIONS MADE BY THE JOINT DIRECTOR OF INCOME-TAX (INTELLIGENCE), THE DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER (APPEALS) HAS TO BE CONSIDERED AS REASONABLE CAUSE. HOWEVER, IT IS FOR THE COMMISSIONER (APPEALS) TO PA SS ORDER ON THE APPLICATION THAT MAY BE FILED BEFORE HIM. 8. WITH THESE OBSERVATIONS, THE APPEAL OF THE ASSES SEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05 TH DECEMBER, 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 05 TH DECEMBER, 2014 PK/- COPY TO: 1. KUMBALANGHI SERVICE CO-OPERATIVE BANK LTD, NO.76 2, KUMBALANGHI, KOCHI 682 007 2. THE JDIT (INTELLIGENCE), KOCHI 3. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH