Director of Income Tax ((I&CI), Lucknow V. Raibarelly District Co-operative Bank Ltd., Raibareli

MA 22/LKW/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2109 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 22-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER M.A. NO.22/LKW/2014 [IN ITA NO. 699/LKW/2013] ASSESSMENT YEAR: 2012 - 13 DIRECTOR OF INCOME TAX (I&CI) LUCKNOW V. RAIBAREILLY DISTRICT CO - OPERATIVE BANK LTD. RAEBAREILLY PAN: LKNZO5100E (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. MANOJ KUMAR GUPTA, CIT (DR) RESPONDENT BY: SHRI. S GUPTA, FCA DATE OF HEARING: 23 0 5 2014 DATE OF PRONOUNCEMEN T: 13 0 6 2014 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEHALF OF THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 7.1.2014 IN ITA NO. 699/LKW/2013 ON THE GROUND THAT THE TRIBUNAL HAS DECIDED THE APPEAL WITHOUT HAVING JURISDICTION TO ENTERTAIN IT , AS THE APPEAL EMANATES FROM THE PENALTY ORDER PASSED UNDER SECTION 271FA OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). THEREFORE, THE ORDER OF THE TRIBUNAL DATED 7.1.2014 DESERVES TO BE RECALLED AND THE APPEAL MAY BE DISMISSED HAVING NO JURISDICTION TO ENTERTAIN THE SAME. IN SUPPORT OF HIS CONTENTION, THE LD. CIT ( D.R. ) HAS PLACED RELIANCE UPON THE ORDER OF THE TRIBUNAL DATED 23.12.2013 IN THE CASE OF HARDOI DISTRICT CO - OPERATIVE BANK LIMITED, H ARDOI VS. DIRECTOR OF INCOME TAX (I&CI), LUCKNOW IN ITA NO.719/LKW/2013 , COPY OF WHICH IS PLACED ON RECORD. THE LD. CIT ( D.R. ) HAS FURTHER CONTENDED THAT PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : THE ORDER PASSED UNDER SECTION 271FA OF THE ACT CAN ONLY BE CHALLENGED BEFORE THE LD. CIT(A) AS PER P ROVISIONS OF SECTION 2 46A(1)(Q) OF THE ACT. HE HAS ALSO MADE REFERENCE TO SECTION 253 OF THE ACT , WHICH SPELLS OUT THE ORDERS APPEALABLE BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THOUGH THE PENALTY ORDER WAS PASSED BY THE DIRECTOR OF INCOME - TAX, BUT THER E IS NO PROVISION IN SECTION 253 WHICH EMPOWERS THE TRIBUNAL TO DEAL WITH THE APPEAL AGAINST THE ORDER OF THE DIRECTOR OF INCOME - TAX, WHEREAS THE ORDER PASSED UNDER CHAPTER XXI OF THE ACT ARE APPEALABLE BEFORE THE LD. CIT(A) A S THE ORDER PASSED UNDER SECTI ON 271FA OF THE ACT FALLS UNDER CHAPTER XXI OF THE ACT. THEREFORE, THE TRIBUNAL HAS ADJUDICATED THE APPEAL WITHOUT HAVING JURISDICTION. 2 . THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE TRIBUNAL DATED 7.1.2014 WITH THE SUBMISSION THAT THE TRIBUNAL HAS ADJUDICATED THE APPEAL HAVING CONVINCED WITH THE ISSUE OF JURISDICTION. THEREFORE, THE ORDER OF THE TRIBUNAL CANNOT BE RECALLED. 3 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE TRIBUNAL IN VIS - - VIS MISCELLANEOUS APPLICATION AND THE ORDER OF THE TRIBUNAL DATED 23.12.2013 PASSED IN THE CASE OF HARDOI DISTRICT CO - OPERATIVE BANK LIMITED, HARDOI VS. DIRECTOR OF INCOME TAX (I&CI), LUCKNOW IN ITA NO.719/LKW/ 2013 AND ALSO THE RELEVANT PROVISIONS OF THE ACT, WE FIND THAT THE ORDER PASSED UNDER SECTION 271FA OF THE ACT FALLS UNDER CHAPTER XXI OF THE ACT AND AS PER SECTION 246A (1)(Q) OF THE ACT, THE ORDER IMPOSING PENALTY UNDER CHAPTER XXI OF THE ACT ARE APPEALA BLE BEFORE THE LD. CIT(A) AND NOT BEFORE THE TRIBUNAL. WE HAVE ALSO EXAMINED THE PROVISIONS OF SECTION 253 OF THE ACT WHICH DEALS WITH THE NATURE OF ORDERS APPEALABLE BEFORE THE TRIBUNAL, BUT IN THE ENTIRE SECTION THERE IS NO REFERENCE WITH REGARD TO THE ORDER PASSED BY THE DIRECTOR OF INCOME - TAX PASSED UNDER SECTION 271FA OF THE ACT. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : THEREFORE, THE TRIBUNAL HAS NO JURISDICTION TO ENTERTAIN THE APPEAL AGAINST THE ORDER OF THE DIRECTOR OF THE INCOME - TAX PASSED UNDER SECTION 271FA OF THE ACT. MOREOVER, THI S ASPECT WAS EXAMINED BY THE TRIBUNAL IN THE CASE OF HARDOI DISTRICT CO - OPERATIVE BANK LIMITED, HARDOI VS. DIRECTOR OF INCOME TAX (I&CI), LUCKNOW IN ITA NO.719/LKW/2013, IN WHICH THE TRIBUNAL HAS TAKEN A CONSIDERED VIEW THAT THE TRIBUNAL HAS NO JURISDICTIO N TO ENTERTAIN THE APPEAL FILED AGAINST THE ORDER OF THE DIRECTOR OF INCOME - TAX PASSED UNDER SECTION 271FA OF THE ACT. FOR THE SAKE OF REFERENCE, WE EXTRACT THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL DATED 23.12.2013 IN THE CASE OF HARDOI DISTRICT CO - OPERATIVE BANK LIMITED, HARDOI VS. DIRECTOR OF INCOME TAX (I&CI), LUCKNOW AS UNDER: - 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT AS PER CLAUSE (Q) OF SUB - SECTION (1) OF SECTION 246A, APPEAL HAS TO BE FILED BEFORE THE CIT (A) AGAINST ANY ORDER IMPOSING A PENALTY UNDER CHAPTER - XXI OF THE ACT AND THEREFORE, THE PRESENT APPEAL FILED BEFORE US DIRECTLY IS NOT MAINTAINABLE AND HENCE, THE SAME IS DISMISSED. HOWEVER, IN THE INTEREST OF JUSTICE, WE HOLD THAT THE ASSESSEE IS AT LIBERTY TO FILE AN APPEAL BEFORE CIT(A) AS PER CLAUSE (Q) OF SUB - SECTION (1) OF SECTION 246A OF THE ACT AND IF SUCH APPEAL IS FILED BEFORE CIT(A) WITHIN 30 DAYS FROM THE RECEIPT OF THIS ORDER, THEN SUCH APPEAL SHOULD BE ADMITTED BY CONDONING THE DELAY IN FILING SUCH APPEAL BECAUSE SUCH DELAY IS CAUSED DUE TO A WRONG NOTING MENTIONED IN NOTICE OF DEMAND U/S 156 AS PER WHICH, THE ASSESSEE WAS ADVISED TO FILE APPEAL BEFORE THE TRIBUNAL. 4 . IN THE LIGHT OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT AT THE TIME OF DISPOSAL OF THE AP PEAL, THIS ASPECT WAS NOT RAISED BY ANY OF THE PARTY AND THE TRIBUNAL HAS INADVERTENTLY ADJUDICATED THE ISSUE AND DECIDED THE APPEAL. BUT NO W WHEN IT HAS BEEN BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT IT HAS ADJUDICATED THE APPEAL WITHOUT HAVING JURISDIC TION OVER IT, THE ORDER OF THE TRIBUNAL DESERVES TO BE RECALLED AND WE ACCORDINGLY RECALL OUR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : ORDER DATED 7.1.2014 AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING ON 3.7.2014. 5 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.6.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH JUNE , 2014 JJ: 1006 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )