SRO, Kollam V. The Director of Incometax, Cochin

ITA 449/COCH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68935 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 14-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Section: 80G; 12AA; 147; 263; 132; 154

Judgement Text

1 ITA NO. 449/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. 449/COCH/2013 (ASSESSMENT YEAR 2011-12) SRO, PUNALUR VS THE DIRECTOR OF INCOME-TAX KOLLAM DISTRICT (INTELLIGENCE), KOCHI PAN : AJHPV2941H (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 03-09-2013 DATE OF PRONOUNCEMENT : 05-09-2013 O R D E R PER N.R.S. GANESAN (JM) THE SUB REGISTRAR, PUNALUR FILED THE PRESENT APPEA L AGAINST THE ORDER OF THE DIRECTOR OF INCOME-TAX (INTELLIGENCE), KOCHI LEVYING PENALTY US 271FA OF THE ACT. 2. SHRI R KRISHNAN, THE LD.REPRESENTATIVE FOR THE A SSESSEE FILED AN APPLICATION FOR ADJOURNMENT. HOWEVER, THIS TRIBUNA L FINDS THAT THE ISSUE IS COVERED BY THE ORDER OF THIS TRIBUNAL IN THE CASE O F SRO,MEPPAYUR- KOZHIKODE IN ITA NO.280/COCH/2013 ORDER DATED 18-07 -2013. THEREFORE, 2 ITA NO. 449/COCH/2013 THE ADJOURNMENT APPLICATION OF THE LD.REPRESENTATIV E FOR THE ASSESSEE IS REJECTED AND THE APPEAL WAS TAKEN UP FOR HEARING. 3. WE HEARD SMT. S VIJAYAPRABHA, THE LD.DR. THE MA INTAINABILITY OF AN APPEAL BEFORE THIS TRIBUNAL AGAINST THE ORDER PASSE D BY THE DIRECTOR OF INCOME-TAX (INTELLIGENCE), KOCHI LEVYING PENALTY U/ S 271FA OF THE ACT CAME BEFORE THIS TRIBUNAL IN THE CASE OF SRO, MEPPAYUR-K OZHIKODE (SUPRA). THIS TRIBUNAL, AFTER CONSIDERING THE RELEVANT PROVI SIONS OF THE ACT FOUND THAT THE APPEAL IS NOT MAINTAINABLE BEFORE THIS TRI BUNAL. IN FACT, THE TRIBUNAL HAS OBSERVED AS FOLLOWS: 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THIS T RIBUNAL 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 SE CTION 253 OF THE ACT. SECTION 253 PROVIDES FOR AN APPEAL BEF ORE THIS TRIBUNAL AGAINST THE ORDERS MENTIONED THEREIN. FOR THE PURPOSE OF CLARITY, THE PROVISIONS OF SECTION 253 A RE REPRODUCED HEREUNDER: 253(1) ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOW ING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH O RDER 3 ITA NO. 449/COCH/2013 (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 (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 O F THE INCOME- TAX DEPARTMENT LEVYING PENALTY U/S 271FA IS APPEALA BLE BEFORE THIS TRIBUNAL. THIS TRIBUNAL BEING A QUASI JUDICIAL 4 ITA NO. 449/COCH/2013 AUTHORITY ESTABLISHED UNDER THE PROVISIONS OF THE I NCOME-TAX ACT CANNOT TRAVEL BEYOND THE PROVISIONS OF THE ACT. THEREFORE, UNLESS AND UNTIL AN APPEAL IS SPECIFICALLY PROVIDED IN 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 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) M ENTIONED IN THE DEMAND NOTICE THAT AN APPEAL CAN BE FILED BEFOR E THIS TRIBUNAL UNDER PART B OF CHAPTER XX OF THE INCOME-T AX ACT. IT IS WELL SETTLED PRINCIPLES OF LAW THAT CONSENT OF A LITIGANT PARTY WILL NOT CONFER ANY JURISDICTION ON A JUDICIAL OR Q UASI JUDICIAL AUTHORITY UNLESS AND UNTIL IT IS OTHERWISE CONFERRE D BY THE LEGISLATURE. THEREFORE, THE CONSENT / DIRECTION OF THE DIRECTOR OF INCOME-TAX (INTELLIGENCE) WILL NOT CONFER ANY JU RISDICTION ON THIS TRIBUNAL UNLESS IT IS PROVIDED FOR IN THE INCO ME-TAX ACT BY THE PARLIAMENT. HENCE, THIS TRIBUNAL COULD NOT ENT ERTAIN THE APPEAL FILED BY THE SUB REGISTRAR, MEPPAYUR-KOZHIKO DE. 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 PENALTY UNDER CHAPTER XXI IS APPEALABLE BEFORE THE CIT(A) UNDER SECTION 246A(Q) OF THE ACT. ADMITTELDY, SECT ION 271FA FALLS IN CHAPTER XXI OF THE INCOME-TX ACT. THEREFO RE, 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 5 ITA NO. 449/COCH/2013 DIRECTOR OF INCOME-TAX (INTELLIGENCE), THEREFORE, THE APPEAL 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 BE ING A QUASI JUDICIAL AUTHORITY ESTABLISHED UNDER THE INCO ME-TAX ACT, CANNOT TRAVEL BEYOND THE PROVISIONS OF SECTION 253 OF THE ACT. THEREFORE, MERELY BECAUSE THE REMEDY AVAILABLE U/S 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 OF THE CONSIDERED OPINION THAT W HEN THE PROVISIONS OF SECTION 271FA WAS INTRODUCED IN THE S TATUTE BOOK BY THE FINANCE ACT, 2004 WITH EFFECT FROM 01-0 4-2005 THE CONSEQUENTIAL AMENDMENT TO SECTION 253 WAS OMITTED TO BE CARRIED OUT. THIS OMISSION MAY BE UNINTENDED. ONE MAY ARGUE THAT AN APPEAL IS PROVIDED AGAINST THE ORDER OF PENALTY U/S 271 IN 253(1)(A) AND 253(1)(C) OF THE ACT, THE REFORE, ALL BRANCHES OF SECTION 271 I.E. FROM 271A TO 271G ARE INCLUDED IN SECTION. THIS ARGUMENT MAY NOT BE CORRECT BECAU SE SECTION 271 IS AN INDEPENDENT SECTION AND IT HAS ITS OWN SU B SECTIONS. SECTIONS 271A TO 271G ARE NOT SUB SECTIONS UNDER SE CTION 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 SEP ARATELY IN SECTION 253(1)(A) AND 253 (1)(C) OF THE ACT. TH EREFORE, THE LEGISLATURE TREATED SECTIONS 271 AND 271A AS SEPARA TE AND INDEPENDENT SECTIONS. IN OTHER WORDS, SECTIONS 271 A TO 271G ARE INDEPENDENT AND SEPARATE SECTIONS AND IT IS NOT PART / 6 ITA NO. 449/COCH/2013 BRANCH OF SECTIONS 271 OF THE ACT. THEREFORE, ARGU MENT, IF ANY, THAT SECTION 271FA IS PART OF SECTION 271 IS N OT CORRECT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT SEC TION 271FA IS SEPARATE AND INDEPENDENT OF SECTION 271 AND THER EFORE, THE REFERENCE OF SECTION 271 IN SECTION 253(1)(A) OR 25 3(1)(C) MAY NOT BE INCLUDED SECTION 271FA. AS ALREADY OBSERVED , THE OMISSION TO INCLUDE SECTION 271FA IN SECTION 253 MA Y BE UNINTENDED. THEREFORE, IT IS OPEN TO THE DEPARTMEN T TO BRING TO THE NOTICE OF THE CONCERNED AUTHORITY ABOUT THE OMI SSION TO PROVIDE APPEAL BEFORE THE TRIBUNAL FOR MAKING CONSE QUENTIAL AMENDMENT TO SECTION 253 OF THE ACT IN CASE THE DEP ARTMENT 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 OPEN TO THE SUB REGISTRAR, MEPPAYUR-KOZH IKODE TO CHALLENGE THE ORDER PASSED BY THE DIRECTOR OF INCO ME-TAX (INTELLIGENCE) LEVYING PENALTY U/S 271FA OF THE ACT BEFORE THE APPROPRIATE FORUM IN A MANNER KNOWN TO LAW. 4. IN VIEW OF THE ABOVE, THE APPEAL OF THE SUB REGI STRAR, PUNALUR AGAINST THE ORDER OF PENALTY U/S 271FA IS NOT MAINT AINABLE BEFORE THIS TRIBUNAL. HOWEVER, IT IS OPEN TO THE SUB REGISTRAR , PUNALUR TO CHALLENGE THE IMPUGNED ORDER OF THE DIRECTOR OF INCOME-TAX (I NTELLIGENCE) BEFORE THE APPROPRIATE FORUM IN A MANNER KNOWN TO LAW. 7 ITA NO. 449/COCH/2013 5. WITH THE ABOVE OBSERVATIONS, THE APPEAL IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05 TH SEPTEMBER, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 5 TH SEPTEMBER, 2013 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH