FILMCITY MEDIA LTD, MUMBAI V. DIT (CIB), MUMBAI

ITA 6040/MUM/2012

• Counselvise Citation: 604019914 RSA 2012
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 28-07-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHIT GANDHI
• Assessee Lawyers: VIVEK BATRA
• Keywords: Principle of natural justice
• Section: 147; 246; 6; 263; 154; 80G; 12AA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE S/SHRI D. MANMOHAN , VICE-PRESIDENT AND B.R.BASKARAN (AM) . , . . , ! ./I.T.A. NO.6040/MUM/2012 ( '#$ % / ASSESSMENT YEAR : 2009-10) FILMCITY MEDIA LIMITED, A-9, SHREE SIDDHIVINAYAK PLAZA, 3 RD FLOOR, PLOT NO.B-31, OFF LINK ROAD, OSHIWARA, ANDHERI (W), MUMBAI-400054. / VS. DIRECTOR OF INCOME TAX (CIB), MAHALAXMI CHAMBERS, OPP RACE COURSE, MAHALAXMI, MUMBAI-400034. ( !&' / APPELLANT) .. ( ()&' / RESPONDENT) & ./ *+ ./PAN/GIR NO. : AAACFI504H !&' , / APPELLANT BY : SHRI NISHIT GANDHI ()&' - , /RESPONDENT BY : SHRI VIVEK BATRA . / - 01 / DATE OF HEARING : 19.8.2014 2 %$ - 01 /DATE OF PRONOUNCEMENT : 28 .8.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 25.5.2011 PASSED BY THE DIRECTOR OF INCOME TAX (CIB ) LEVYING A PENALTY OF RS.63,200/- U/S 271FA OF THE ACT AND IT RELATES TO THE ASSESSMENT YEAR 2008-09. 2. THE LD COUNSEL SHRI NISHIT GANDHI APPEARED ON BE HALF OF THE ASSESSEE. HE SUBMITTED THAT THE DIRECTOR OF INCOME TAX (CIB) HAS LEVIED A PENALTY OF RS.63,200/- U/S 271FA OF THE ACT WITH THE ALLEGATIO N THAT THE ASSESSEE HAS FAILED TO FURNISH THE ANNUAL INFORMATION RETURN REQUIRED T O BE FILED U/S 285BA OF THE ACT. HE SUBMITTED THAT THE ASSESSEE HAD FILED THE SAID RETURN ON 12.06.2009, I.T.A. NO.6040/MUM/2012 2 I.E., WELL BEFORE THE DUE DATE PRESCRIBED UNDER THE ACT FOR FILING THE SAME. HE FURTHER SUBMITTED THAT THE ASSESSEE RECEIVED A DEFE CT NOTICE DATED 02.1.2010 FROM THE DIRECTOR OF INCOME TAX (SYSTEMS) AND ALSO FURTHER RECEIVED TWO LETTERS VIZ., LETTER NO. ACIT (CIB)- I & II/AIR/2009-10/23 DATED 3.3.2010 AND LETTER NO.ACIT (CIB)-I & II/AIR/2009-10/28 DATED 3.3.2010 FROM THE ACIT (CIB), WHEREIN IT WAS POINTED OUT THAT THERE IS EITHER MIS MATCH IN PAN QUOTED IN THE TRANSACTIONS OR THERE IS NO PAN. IN RESPONSE THERE TO, THE ASSESSEE FURNISHED A SUPPLEMENTARY ANNUAL INFORMATION RETURN ON 08.3.201 0. THE ASSESSEE HAS ALSO FURNISHED REPLY TO THE ACIT EXPLAINING THE ABOVE FA CTS. THE ASSESSEE, THEREAFTER RECEIVED A LETTER DATED JUNE 02, 2010 ACCEPTING THE SUPPLEMENTARY ANNUAL INFORMATION RETURN ALSO. 3. THEREAFTER THE ASSESSEE RECEIVED A NOTICE D ATED 06.1.2011 FROM THE DIRECTOR OF INCOME TAX (CIB) U/S 274 R.W.S. 271FA O F THE ACT. THE LD A.R SUBMITTED THAT THE ASSESSEE FURNISHED A REPLY DATED 02-02-2011 AND ALSO ANOTHER LETTER DATED JUNE 13, 2011, WHERE IN THE FA CTS NARRATED EARLIER WERE DULY BROUGHT TO HIS NOTICE. HOWEVER, THE DIRECTOR OF I NCOME TAX (CIB) HAS IMPOSED A PENALTY OF RS.63,200/- WITH THE ALLEGATION THAT THE ASSESSEE HAS FAILED TO FURNISH THE ANNUAL INFORMATION RETURN AND ALSO FAILED TO RE SPOND TO HIS NOTICES. 4. THE LD COUNSEL FURTHER SUBMITTED THAT THE AS SESSEE, INITIALLY, PREFERRED AN APPEAL BEFORE LD CIT(A) CHALLENGING THE ORDER PASSE D BY THE DIRECTOR OF INCOME TAX (CIB) AND THE SAME WAS ALSO FIXED FOR HEARING O N 17.08.2012. ON THAT DAY, THE ASSESSEE ALSO FILED A LETTER BEFORE LD CIT(A) E XPLAINING THE SEQUENCE OF EVENTS. THEREAFTER, THE ASSESSEE DID NOT RECEIVE A NY ORDER FROM LD CIT(A). ON MAKING FURTHER ENQUIRIES, THE ASSESSEE WAS ADVISED TO PREFER APPEAL BEFORE THE I.T.A. NO.6040/MUM/2012 3 TRIBUNAL AND ACCORDINGLY THE ASSESSEE HAS FILED THE PRESENT APPEAL, WHICH RESULTED IN DELAY. HE SUBMITTED THAT THE DELAY OF 277 DAYS HAS OCCURRED FOR THE ABOVE SAID REASON, I.E., THAT THE ASSESSEE WAS PURS UING THE MATTER BEFORE LD CIT(A). 5. THE LD COUNSEL SUBMITTED THAT THE ASSESSEE H AS SHOWN THAT THERE IS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL BEFORE T RIBUNAL IN TIME. HE FURTHER SUBMITTED THAT THE ASSESSEE, DESPITE THE FACT THAT IT HAS DULY COMPLIED WITH THE PROVISIONS OF THE ACT, IS BEING HARASSED BY THE REV ENUE FOR NO FAULT OF IT. ACCORDINGLY, HE PRAYED THAT THE PRESENT APPEAL SHOU LD BE ADMITTED IN THE INTEREST OF NATURAL JUSTICE AND THE PENALTY BE DELETED. 6. WHEN A SPECIFIC QUERY WAS PUT TO THE LD A.R AS TO WHETHER THE IMPUGNED ORDER FALLS IN THE CATEGORY OF APPEALABLE ORDERS (B EFORE ITAT) PRESCRIBED IN SEC. 253 OF THE ACT, THE LD A.R SUBMITTED THAT THE ORDER PASSED U/S 271FA IS NOT SPECIFICALLY INCLUDED IN THE LIST OF APPEALABLE ORD ERS. THE ORDERS PASSED BY A COMMISSIONER U/S 271 IS INCLUDED IN SEC. 253 OF THE ACT AND THE SAME SHOULD BE LIBERALLY CONSTRUED TO INCLUDE THE ORDER PASSED U/S 271FA OF THE ACT ALSO. HE FURTHER SUBMITTED THAT SEC. 271FA OF THE ACT FALLS IN CHAPTER XXI AND THE PENALTIES LEVIED UNDER THAT CHAPTER IS APPEALABLE B EFORE LD CIT(A) U/S 246A(1)(Q) OF THE ACT. HOWEVER, SINCE THE IMPUGNED ORDER IS PASSED BY THE DIRECTOR OF INCOME TAX, WHO IS EQUAL TO THE RANK OF COMMISSIONER OF INCOME TAX (APPEALS), LD CIT(A) APPEARS TO HAVE NOT INCLINED T O DISPOSE OF OUR APPEAL FILED BEFORE HIM. ACCORDINGLY, HE SUBMITTED THAT THE TRI BUNAL, BEING A HIGHER FORUM THAN THAT OF THE DIRECTOR OF INCOME TAX, CAN SEIZE OF THIS MATTER AND RENDER JUSTICE. I.T.A. NO.6040/MUM/2012 4 7. WE HAVE HEARD LD D.R ON THIS MATTER AND PERU SED THE RECORD. WE NOTICE THAT ALL THE CONTENTIONS URGED BY THE LD A.R WERE C ONSIDERED BY THE COCHIN BENCH OF TRIBUNAL IN THE CASE OF KOLLAM DISTRICT CO -OP BANK LTD VS. DCIT (2013)(36 CCH 486)(COCHIN). ONE MORE SUBMISSION WAS MADE IN THE CASES CONTENDED BEFORE THE COCHIN BENCH OF TRIBUNAL, VIZ. , THE DEMAND NOTICE ISSUED BY DIRECTOR OF INCOME TAX IN FORM NO.7 HAS SPECIFIC ALLY STATED THAT THE APPEAL AGAINST THE SAID ORDER LIES BEFORE THE TRIBUNAL. TH E COCHIN BENCH HAS ADDRESSED ALL THE CONTENTION AND HENCE, FOR THE SAKE OF CONVE NIENCE, WE EXTRACT BELOW THE ORDER PASSED BY THE COCHIN BENCH OF ITAT IN THE ABO VE CITED CASE. 2. NONE APPEARED BEFORE US WHEN THE APPEAL WAS TAK EN FOR HEARING. HOWEVER, AN APPLICATION WAS FILED FOR ADJOURNMENT O N BEHALF OF THE ASSESSEE ON THE GROUND OF PERSONAL INCONVENIENCE. T HIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ISSUE RAISED IN THIS AP PEAL IS COVERED MATTER AGAINST THE ASSESSEE. THEREFORE, IT MAY NOT BE NECE SSARY TO ADJOURN THE APPEALS IN VIEW OF THE ORDER OF THE TRIBUNAL ON AN IDENTICAL MATTER. FOR THE PURPOSE OF CONVENIENCE, THE OBSERVATIONS MADE IN TH E ORDER OF THE TRIBUNAL IN THE CASE OF THE SUB-REGISTRAR, ALAKODE, KANNUR DIST IN ITA NO.212/COCH/2013 IN PARS 4 TO 8 ARE REPRODUCED HERE UNDER: ' 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON EITHER S IDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE QUEST ION ARISES FOR CONSIDERATION IS WHETHER THIS TRIBUNAL COULD ENTERT AIN AN APPEAL BY THE SUB REGISTRAR, MEPPAYUR-KOZHIKODE AGAINST THE O RDER OF PENALTY U/S 271FA OF THE ACT. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 253 OF THE ACT. SECTION 253 P ROVIDES FOR AN APPEAL BEFORE THIS TRIBUNAL AGAINST THE ORDERS MENT IONED THEREIN. FOR THE PURPOSE OF CLARITY, THE PROVISIONS OF SECTI ON 253 ARE REPRODUCED HEREUNDER: 253(1) : ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLO WING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH O RDER: (A) AN ORDER PASSED BY A DEPUTY COMMISSION (APPEALS ) BEFORE THE 1 ST DAY OF OCTOBER, 1998 OR, AS THE CASE MAY BE, A COM MISSIONER (APPEALS) UNDER SECTION 154, SECTION 250, SECTION 2 71, SECTION 271A OR SECTION 272A; OR I.T.A. NO.6040/MUM/2012 5 (B) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER C LAUSE ( C) OF SECTION 158BC, IN RESPECT OF SEARCH INITIATED UNDER SECTION132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQ UISITIONED UNDER SECTION132A, AFTER THE 3& H DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY 1997; OR (BA) AN ORDER PASSED BY AN ASSESSING OFFICERS UNDER SUB SECTION (1) OF SECTION 115VZC; OR (C)AN ORDER PASSED BY A COMMISSIONER UNDER SECTION 12AA OR UNDER CLAUSE (VI) OF SUB-SECTION (5) OF SECTION 80G OR UN DER SECTION 263 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 CHIEF COMMISSIONER OR A DIRECTOR GENERAL OR A DIRECTOR UNDER SECTION 272A; OR (C) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER S UB-SECTION *3), OF SECTION 143 OR SECTION 147 IN PURSUANCE OF THE D IRECTIONS OF THE DISPUTE RESOLUTION PANEL OR AN ORDER PASSED UNDER S ECTION 154 IN RESPECT OF SUCH ORDER.' NOWHERE IN SECTION 253 MENTIONS THE ORDER PASSED BY DIRECTOR OF INCOME TAX (INTELLIGENCE) OR ANY OTHER OFFICER OF T HE INCOME TAX DEPARTMENT LEVYING PENALTY U/S 271FA IS APPEALABLE BEFORE THIS TRIBUNAL. THIS TRIBUNAL BEING A QUASI JUDICIAL AUTH ORITY ESTABLISHED UNDER THE PROVISIONS OF THE INCOME TAX ACT CANNOT T RAVEL BEYOND THE PROVISIONS OF THE ACT. THEREFORE, UNLESS AND UN TIL AN APPEAL IS SPECIFICALLY PROVIDED SECTION 253 OF THE ACT AGAINS T 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) MENTIONED IN THE DEMAND NOTICE THAT AN APPEAL CAN BE FILED BEFORE THIS TRIB UNAL UNDER PARTY B OF CHAPTER XX OF THE INCOME TAX ACT. IT IS WELL S ETTLED PRINCIPLES OF LAW THAT CONSENT OF A LITIGANT PARTY WILL NOT CO NFER ANY JURISDICTION OF A JUDICIAL OR QUASI JUDICIAL AUTHORITY UNLESS AN D UNTIL IT IS OTHERWISE CONFERRED BY THE LEGISLATURE. THEREFORE, THE CONSENT/DIRECTION OF THE DIRECTOR OF INCOME TAX (IN TELLIGENCE) WILL NOT CONFER ANY JURISDICTION ON THIS TRIBUNAL UNLESS SIT IS PROVIDED FOR IN THE INCOME TAX ACT BY THE PARLIAMENT. HENCE, THI S TRIBUNAL COULD NOT ENTERTAIN THE APPEAL FILED BY THE SUB REGISTRAR , MEPPAAYUR- KOZHIKODE, 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) U/S 246 A(Q) OF THE ACT. I.T.A. NO.6040/MUM/2012 6 ADMITTEDLY, SECTION 271FA FALLS IN CHAPTER XXI OF THE INCOME TAX ACT. THEREFORE, ONE MAY CLAIM THAT AN APPEAL IS PRO VIDED U/S 246A(Q) OF THE ACT. WE ARE CONSCIOUS THAT THE CIT(A ) IS EQUIVALENT IN RANK THAT OF THE DIRECTOR OF INCOME TAX (INTELLI GENCE), THEREFORE, THE APPEAL BEFORE CIT(A) MAY NOT BE AN EFFECTIVE AN D EFFICIOUS REMEDY AVAILABLE TO THE SUB REGISTRAR, MEPPAYUR-KOZ HIKODE AGAINST WHOM PENALTY WAS LEVIED. HOWEVER, THIS TRIBUNAL BEI NG 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 US/ 246A(Q) OF THE ACT MAY NOT BE EFFECTIVE AND EFFICIOUS THAT ALONE WILL NOT GIVE ANY JURISDICTION TO THIS TRIBUNAL TO ENTERTAIN THIS APP EAL. 7. FURTHER, WE ARE OF THE CONSIDERED OPINION THAT W HEN THE PROVISIONS OF SECTION 271FA WAS INTRODUCED IN THE STATUTE BOOK BY THE FINANCE ACT, 2004 WITH EFFECT FROM 1.4.2005 THE CONSEQUENTIAL AMENDMENT TO SECTION 253 WAS OMITTED TO BE CARRIED OUT. THIS OMISSION MAY BE UNINTENDED. ONE MAY ARGUE THAT AN A PPEAL IS PROVIDED AGAINST THE ORDER OF PENALTY U/S 271 IN 25 3(1)(A) AND 253(10(C ) OF THE ACT, THEREFORE, ALL BRANCHES OF S ECTION 271 I.E. FROM 271A TO 271G ARE INCLUDED IN SECTION. THIS ARG UMENT MAY NOT BE CORRECT BECAUSE SECTION 271 IS AN INDEPE3NDENT S ECTION AND IT HAS ITS OWN SUB SECTIONS. SECTIONS 271A TO 271G ARE NOT SUB SECTIONS UNDER SECTION 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 SEPARATELY IN SECTION 253(1)(A) AND 253(1)( C) OF T HE ACT THEREFORE, THE LEGISLATURE TREATED SECTIONS 271 AND 271A AS SE PARATE AND INDEPENDENT SECTIONS. IN OTHER WORDS, SECTIONS 271A TO 271G ARE INDEPENDENT AND SEPARATE SECTIONS AND IT IS NOT PAR T/BRANCH OF SECTIONS 271 OF THE ACT. THEREFORE, ARGUMENT, IF AN Y THAT SECTION 271FA IS PART OF SECTION 271 IS NOT CORRECT. THIS TRIBUN AL IS OF THE CONSIDERED OPINION HAT SECTION 271FA IS SEPARATE AND INDEPENDENT OF SECTION 271 AND THEREFORE, THE REFERENCE OF SECT ION 271 IN SECTION 253(1)(A) OR 253(1)( C) MAY NOT BE INCLUDED SECTION 271FA . AS ALREADY OBSERVED, THE OMISSION TO INCLUDE SECT ION 271FA IN SECTION 253 MAY BE UNINTENDED. THEREFORE, IT IS OPEN TO THE DEPARTMENT TO BRING TO THE NOTICE OF THE CONCER NED AUTHORITY ABOUT THE OMISSION TO PROVIDE APPEAL BEFORE THE TRI BUNAL FOR MAKING CONSEQUENTIAL AMENDMENT TO SECTION 253 OF TH E ACT IN CASE THE DEPARTMENT FOUND THAT THE OMISSION IS UNINTENDE D. 8. IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL OF T HE SUB-REGISTRAR, MEPPAYUR- KOZHIKODE IS DISMISSED AS NOT MAINTAINABL E BEFORE THIS TRIBUNAL. HOWEVER, IT IS MADE CLEAR THAT IT IS OPEN TO THE SUB REGISTRAR, MEPPAYUR-KOZHIKODE TO CHALLENGE THE ORDE R PASSED BY THE DIRECTOR OF INCOME TAX (INTELLIGENCE) LEVYING P ENALTY U/S 271FA OF THE ACT BEFORE THE APPROPRIATE FORUM IN A MANNE R KNOWN TO LAW.' I.T.A. NO.6040/MUM/2012 7 3. IN VIEW OF THE ORDER OF THIS TRIBUNAL (SUPRA), W E ARE OF THE CONSIDERED OPINION THAT THESE APPEALS ARE NOT MAINTAINABLE BEF ORE THIS TRIBUNAL AGAINST THE ORDER OF THE DIRECTOR OF INCOME TAX (IN TELLIGENCE) LEVYING PENALTY U/S 271FA OF THE ACT. HOWEVER, THE ASSESSEE IS AT THE LIBERTY TO CHALLENGE THE IMPUGNED ORDER OF THE DIRECTOR OF INC OME TAX (INTELLIGENCE) BEFORE THE APPROPRIATE FORUM IN A MANNER KNOWN TO L AW. WITH THIS OBSERVATION, THE APPEALS FILED BY THE ASSESSEE STAN DS DISMISSED. 8. WE CONCUR WITH THE VIEW TAKEN BY THE COCHIN BENCH OF TRIBUNAL IN THE ABOVE SAID CASE AND ACCORDINGLY HOLD THAT THE PRESE NT APPEAL IS NOT MAINTAINABLE BEFORE US. SINCE WE CANNOT ADMIT THE PRESENT APPEA L, THE QUESTION OF CONDONING THE DELAY ALSO DOES NOT ARISE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS DISMISSED IN LIMINE AS UNADMITTED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COUR T ON 28TH AUG, 2014 . 2 %$ . 3 4 5 6 28TH TH AUG, 2014 - 7/ 8 SD SD ( . / D. MANMOHAN ) ( . . , / B.R. BASKARAN ) / VICE- PRESIDENT / ACCOUNTANT MEMBER . / MUMBAI: 28TH AUG,2014. . ' . ./ SRL , SR. PS !'#$% &%'# / COPY OF THE ORDER FORWARDED TO : 1. !&' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. . =0 ( ! ) / THE CIT(A)- CONCERNED 4. . =0 / CIT CONCERNED 5. >?7 ('0'@# , !1 !@#$ , . / / DR, ITAT, MUMBAI CONCERNED 6. 7 / / GUARD FILE. A . / BY ORDER, TRUE COPY * (ASSTT. REGISTRAR) !1 !@#$ , . / /ITAT, MUMBAI