SUB REGISTRAR, SAKTI V. DIRECTOR OF INCOME TAX (I & CI), BHOPA;

ITA 51/RPR/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3186 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 26-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause; Set aside
• Section: 147; 263; 132; 154; 153A; 80G; 12AA; 271D; 200A; 201; 274; 246A; 271B; 13; 272A; 153C

Judgement Text

ITAT-Raipur Page 1 of 13 आयकर अपीलीय Ɋायािधकरण, रायपुर Ɋायपीठ, रायपुर मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR (Through Virtual Court at Raipur) BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI JAMLAPPA D BATTULL, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No. 51/RPR/2018 कर िनधाŊरण वषŊ / Assessment Year : 2014-2015 Sub-Registrar, Sakti, Tehsil Parisar, Sakti-495689 (C.G.) TAN: JBPS 04744 F . . . . . . .अपीलाथŎ / Appellant बनाम / V/s Director of Income Tax – (I&CI), Bhopal - 462016 (MP) . . . . . . .ÿÂयथê / Respondent }kjk / Appearances Assessee by : None for the Assessee Revenue by : Shri P.K. Mishra सुनवाई की तारीख / Date of conclusive Hearing : 28/04/2022 घोषणा की तारीख / Date of Pronouncement : 29/04/2022 आद े श / ORDER PER JAMLAPPA D BATTULL, AM; The present appeal filed by the appellant assessee is assailed against the order of, the Director of Income Tax- (I&CI), Bhopal [for short “DIT(I&CI)”] dt. 29/12/2017 passed u/s 271FA r.w.s. 274 of the Income-tax Act, 1961 [for short “the Act”], for the assessment year [for short “AY”] 2014-2015. Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 2 of 13 2. The controversy under the present appeal lies in a narrow compass as to whether an order of penalty passed u/s 271FA of the Act, shall lie directly before the Income Tax Appellate Tribunal [for short “Tribunal”] 3. Before advancing the matter on facts for adjudication, it is necessary to imitate grounds assailed by the appellant as under; “1. The learned Director of Income Tax investigation has erred in law and on facts of the case in imposing penalty of Rs. 3,51,500/-u/s 271FA of the I.T. Act 1961. The entire penalty being illegal and unjustified should be quashed in Toto. 2. Without prejudice to the above ground no notice were served on the appellant for furnishing statement U/s 285BA of the Act and no proper opportunity was allowed to show cause before imposition of penalty. The penalty should be deleted. 3. The appellant was prevented by reasonable cause in furnishing the statement u/s 285BA and reply to penalty. The order of penalty should be set aside and cancelled.” (Emphasis Supplied) 4. Having laid the grounds of appeal challenged under the present appeal, succinctly stated facts of the case are; 4.1 The appellant is the Office of the Sub-Registrar, responsible for registering or maintaining books of account or other documents containing record of specified financial transactions and u/s 285BA r.w.r. 114E and was liable to furnish an annual information return [for short “AIR”] in respect of such specified transactions registered or recorded during the financial year 2014-2015 by the extended due date of filing 10/09/2015. The appellant Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 3 of 13 however, failed to file the AIR in due time, consequently a notice u/s 285BA(5) dt. 26/11/2015 was issued calling upon the appellant to file the AIR by 15/12/2015, failing to which a show cause notice [for short “SCN”] u/s 271FA r.w.s. 274 of the Act, dt. 31/03/2016 was also issued on the appellant to show case as to why an order imposing penalty u/s 271FA of the Act should not be levied for the default in filing AIR so for as the financial year 2014-2015 is concerned. In the event of failure to attend the notices and even the SCN, the Ld. AO observing the principle of natural justice, by issue of a final reminder through a notice dt. 03/11/2017 u/s 271FA r.w.s 274 of the Act accorded further opportunity to the appellant to make good the default, however the exercise did not yield any result & remained futile, consequently a penalty u/s 271FA for sum of ₹3,51,500/- was levied for the default in filing AIR for a period of 703 days computed from the expiry of extended date allowed by issue of notice u/s 285BA(5) up-to the date of final opportunity granted for filing AIR by notice issued u/s 271FA i.e. 17/11/2017. 4.2 Aggrieved by the order of Ld. DIT(I&CI), the appellant is in appeal before us with the grounds of appeal laid in foregoing para 3. 5. Nota bene, during the course of the present virtual hearing, the learned departmental representative [for short “DR”] adverting the records, brought to the notice of the bench that, the present appeal was filed in the year 2018 and since then the matter was listed before bench on very few dates, however for non-appearance of the appellant the hearing was adjourned from time-to-time and from the conduct, it appears that, the appellant is not interested in Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 4 of 13 prosecuting the appeal for a long time. On a no objection from Ld. DR, the bench thought fit to proceed to adjudicate the matter on the basis of records filed by the appellant. After hearing to the Ld. DR; perused material placed on records and duly considered the facts of the case in the light of settled legal position and the case laws relied upon by the respondent revenue. 6. When the appeals is taken up in the course of virtual hearing, the Ld. DR adverting to the appeal memo, contended that, any order passed by the Learned Commissioner of Income [for short “CIT”] Tax u/s 271 is appealable before the Tribunal u/s 253, however there is no specific entry u/s 253 of the Act which can empower the Tribunal to entertain the impugned order passed by the Ld. AO u/s 271FA of the Act, however, given a liberal construction, the appeal may be heard for adjudication. Blowing hot and cold, the Ld. DR also submitted that, since section 271FA of the Act being a penalty provision falls under Chapter XXI of the Act and any order passed levying penalties under this Chapter is very much appealable before learned Commissioner of Income Tax(Appeals) [for short “CIT(A)”] within the clause (q) to section 271FA(1) of the Act. Since the impugned order is passed by the DIT(I&CI) who is equal to the rank of CIT(A), controversy over jurisdiction to entertain the appeal remained to be seized first, before the matter is taken on merits. 7. The prime controversy in the present appeal lies gyrate around as to whether an order passed u/s 271FA of the Act by the DIT, who holds the rank of a CIT(A), is appealable u/s 246A(1)(q) of the Act before CIT(A) or appealable directly to the Tribunal u/s 253 of the Act. Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 5 of 13 8. In reaching the north pole of adjudication, it is apt to reproduce the provision relating the jurisdiction of appellate authorities in entertaining the appeal as stands today; 8.1 253. Appeals to the Appellate Tribunal. (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order— (a) an order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, a Commissioner (Appeals) under section 154, section 250, section 270A, section 271, section 271A, section 271J or section 272A; or (b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st 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 Principal Commissioner or Commissioner [under section 12AA or section 12AB] or under clause (vi) of sub-section (5) of section 80G or under section 263 or under section 270A or under section 271 or under section 272A or an order passed by him under section 154 amending his order under section 263 or an order passed by a Principal Chief Commissioner or Chief Commissioner or a Principal Director General or Director General or a Principal Director or Director under section 272A; or (d) an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153C in Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 6 of 13 pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order; (e) an order passed by an Assessing Officer under sub-section (3) of section 143 or section 147 or section 153A or section 153C with the approval of the Principal Commissioner or Commissioner as referred to in sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order; (f) an order passed by the prescribed authority under sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub-clause (via) of clause (23C) of section 10. (2) The Principal Commissioner or Commissioner may, if he objects to any order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998 or, as the case may be, a Commissioner (Appeals) under section 154 or section 250, direct the Assessing Officer to appeal to the Appellate Tribunal against the order. (3) . . . . . . . (4) . . . . . . . (5) . . . . . . . (6) . . . . . . . (7) . . . . . . . . (8) . . . . . . . . (9) . . . . . . . . (10) . . . . . . . . (Emphasis supplied) 8.2 246A Appealable orders before Commissioner (Appeals). (1) Any assessee or any deductor or any collector aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against— (a) an order passed by a Joint Commissioner under clause (ii) of sub- section (3) of section 115VP or an order against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-section (1) or sub-section (1B) of section 143 or sub-section (1) of section 200A or sub-section (1) of section 206CB, where the assessee or the deductor or the collector objects to the Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 7 of 13 making of adjustments, or any order of assessment under sub-section (3) of section 143 except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA or section 144, to the income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed; (aa) an order of assessment under sub-section (3) of section 115WE or section 115WF, where the assessee, being an employer objects to the value of fringe benefits assessed; (ab) an order of assessment or reassessment under section 115WG; (b) an order of assessment, reassessment or recomputation under section 147 except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA or section 150; (ba) an order of assessment or reassessment under section 153A except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA; (bb) an order 48[made] under sub-section (3) of section 92CD; (c) an order made under section 154 or section 155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections except an order referred to in sub-section (12) of section 144BA; Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 8 of 13 (d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made under clause (b) of sub-section (1) or under sub- section (2) or sub-section (3) or sub-section (5) of section 185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992; (h) an order cancelling the registration of a firm under sub-section (1) or under sub-section (2) of section 186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992 or any earlier assessment year; (ha) an order made under section 201; (hb) an order made under sub-section (6A) of section 206C; (i) an order made under section 237; (j) an order imposing a penalty under— (A) section 221; or (B) section 271, section 271A, section 271AAA, section 271AAB, section 271F, section 271FB, section 272AA or section 272BB; (C) section 272, section 272B or section 273, as they stood immediately before the 1st day of April, 1989, in respect of an assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment years; Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 9 of 13 (ja) an order of imposing or enhancing penalty under sub-section (1A) of section 275; (k) an order of assessment made by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after the 1st day of January, 1997; (l) an order imposing a penalty under sub-section (2) of section 158BFA; (m) an order imposing a penalty under section 271B or section 271BB; (n) an order made by a Deputy Commissioner imposing a penalty under section 271C, section 271CA, section 271D or section 271E; (o) an order made by a Deputy Commissioner or a Deputy Director imposing a penalty under section 272A; (p) an order made by a Deputy Commissioner imposing a penalty under section 272AA; (q) an order imposing a penalty under Chapter XXI; (r) . . . . . . . Explanation.—For the purposes of this sub-section, where on or after the 1st day of October, 1998, the post of Deputy Commissioner has been redesignated as Joint Commissioner and the post of Deputy Director has been redesignated as Joint Director, the references in this sub-section for "Deputy Commissioner" and "Deputy Director" Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 10 of 13 shall be substituted by "Joint Commissioner" and "Joint Director" respectively. (1A) Every appeal filed by an assessee in default against an order under section 201 on or after the 1st day of October, 1998 but before the 1st day of June, 2000 shall be deemed to have been filed under this section. (1B) Every appeal filed by an assessee in default against an order under sub-section (6A) of section 206C on or after the 1st day of April, 2007 but before the 1st day of June, 2007 shall be deemed to have been filed under this section. (2) Notwithstanding anything contained in sub-section (1) of section 246, every appeal under this Act which is pending immediately before the appointed day, before the Deputy Commissioner (Appeals) and any matter arising out of or connected with such appeals and which is so pending shall stand transferred on that date to the Commissioner (Appeals) and the Commissioner (Appeals) may proceed with such appeal or matter from the stage at which it was on that day : Provided that the appellant may demand that before proceeding further with the appeal or matter, the previous proceeding or any part thereof be reopened or that he be re-heard. Explanation.—For the purposes of this section, "appointed day" means the day appointed by the Central Government by notification in the Official Gazette. 6. From the careful perusal of provision of section 253, it reveals that, the order levying penalty u/s 271FA does not find place in either of the sub-section Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 11 of 13 so as to enter directly for adjudication before the second appellate authority i.e. Tribunal. In the absence of specific entry entitling the aggrieved to reach the final fact finding authority, the jurisdiction to entertain the appeal prima-facie fails, au contraire the clause (q) of sub-section (1) of section 246A makes clear enabling provision for the first appellate authority to entertain any order of penalty passed under chapter XXI of the Act without reference to authority passing the order. From a mere reading of the provision for filing appeal against order passed u/s 271 and 272A (also under Chapter XXI) of the 1961 Act before the ITAT, we cannot on analogy hold that because the said order was passed by an officer of the rank of CIT is directly appealable before the ITAT u/s 253 of the 1961 Act, hence an order u/s 271FA of the 1961 Act also passed by an officer of the rank of CIT should also be appealable before the ITAT. 7. We are not unmindful to the fact that, the CIT(A) is equivalent in rank that of the DIT(I&CI), therefore, the appeal before CIT(A) may not be an effective and efficious remedy available to the Sub Registrar, Sakti against whom penalty was levied. However, this Tribunal being a quasi-judicial authority established under the Income 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 any jurisdiction to this Tribunal to entertain this appeal. 8. Per contra, a Careful perusal of section 246A(1)(q) of the Act reveals that, an appeal can lie before the CIT(A) against any order of penalty passed under Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 12 of 13 Chapter XXI of the Act, and section 271FA admittedly falls within the Chapter XXI of the Act, and such entry does not distinguish the authority by whom it is passed under the provisions of the Act. Therefore on a plain reading of the said provision, an appeal against an order passed u/s 271FA of the Act, by any authority including an officer of the rank of CIT per legem is maintainable before the CIT(A). In our considered view even though an order of penalty u/s 271 and 272A of the 1961 Act fall under Chapter XXI, appeal therefrom stand excluded before the CIT(A) under the general vis-à-vis blanket provision of Section 246A(1)(q) by virtue of a specific provision u/s 253(1)(c) of the 1961 Act. Consequently, in our view the impugned order passed u/s 271FA (Chapter XXI) of the Act, is plainly appealable u/s 246A(1)(q) of the Act and no amount of interpretative exercise can displace law as enacted. 9. It is apropos to quote the aforesaid view has been fortified by the Hon’ble High Court of Rajasthan in the case of “DIT (CIB) Vs Shri Ravi Vijay & Anr.” And DIT(CIB) Vs Balu Ram & Anr. (SB Civil Petition 11458/2011 & 11914/2011), a similar view has also found taken by the co-ordinate bench of the Tribunal in “Sub-Registrar, Nakodar Vs DIT” reported in 57 DTR 497, “Sub- Registrar, Kannur Vs DIT(Intelligence)” (ITA No 238/Coch/2013). 10. In view of the above, this Tribunal is of the considered opinion that the appeal filed by the Sub Registrar, Sakti is not maintainable before this Tribunal, however, the Sub Registrar is at liberty to challenge the impugned order passed by the DIT(I&CI) levying penalty u/s 2171FA of the act before an appropriate Sub-Registrar-Sakti, AY :2014-2015 ITA No :51/RPR/2018, TAN : JBPS04744F ITAT-Raipur Page 13 of 13 forum in a manner known to law, with the above observations, the appeal of the Sub Registrar, Sakti is dismissed. 11. Resultantly, the appeal of the appellant is dismissed as not maintainable. Order pronounced in open court on this Friday 29 th day of April, 2022. -S/d- -S/d- RAVISH SOOD JAMLAPPA D BATTULL JUDICIAL MEMBER ACCOUNTANT MEMBER रायपुर/ RAIPUR; िदनांक / Dated : 29 th day of April, 2022 आदेश की Ůितिलिप अŤेिषत / Copy of the Order forwarded to : 1. अपीलाथŎ / The Appellant. 2. ŮȑथŎ / The Respondent. 3. The Pr. CIT, Raipur (C.G.) 4. The Pr. CIT, Bhopal (M.P.) 5. िवभागीय Ůितिनिध, आयकर अपीलीय Ɋायािधकरण, रायपुर / DR, ITAT, Raipur Bench, Raipur. 6. गाडŊफ़ाइल / Guard File. आदेशानुसार / BY ORDER, िनजीसिचव / Private Secretary आयकर अपीलीय Ɋायािधकरण, रायपुर