, ""
IN THE INCOME TAX APPELLATE TRIBUNAL "F" BENCH, MUMBAI
BEFORE HON'BLE 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, / Director of Income Tax (CIB),
A-9, Shree Siddhivinayak Plaza, Vs. Mahalaxmi Chambers,
3rd Floor, Plot No.B-31, Opp Race Course,
Off Link road, Oshiwara, Mahalaxmi,
Andheri (W), Mumbai-400034.
Mumbai-400054.
( /Appellant) .. ( / Respondent)
. / . /PAN/GIR No. : AAACFI504H
/ Appellant by : Shri Nishit Gandhi
/Respondent by : Shri Vivek Batra
/ Date of Hearing
: 19.8.2014
/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 against 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 behalf 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 allegation that the assessee has failed
to furnish the Annual Information Return required to 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
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i.e., well before the due date prescribed under the Act for filing the same. He
further submitted that the assessee received a defect 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 mismatch in PAN quoted in the
transactions or there is no PAN. In response thereto, the assessee furnished a
supplementary Annual Information Return on 08.3.2010. The assessee has also
furnished reply to the ACIT explaining the above facts. The assessee, thereafter
received a letter dated June 02, 2010 accepting the supplementary Annual
Information Return also.
3. Thereafter the assessee received a notice dated 06.1.2011 from the
Director of Income tax (CIB) u/s 274 r.w.s. 271FA of 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 facts narrated earlier were duly
brought to his notice. However, the Director of Income 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 respond to his notices.
4. The Ld Counsel further submitted that the assessee, initially, preferred an
appeal before Ld CIT(A) challenging the order passed by the Director of Income
tax (CIB) and the same was also fixed for hearing on 17.08.2012. On that day,
the assessee also filed a letter before Ld CIT(A) explaining the sequence of
events. Thereafter, the assessee did not receive any 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
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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 pursuing the matter before Ld
CIT(A).
5. The Ld Counsel submitted that the assessee has shown that there is
sufficient cause for not filing the appeal before Tribunal 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 revenue for no fault of it.
Accordingly, he prayed that the present appeal should 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 (before 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 orders. 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 before 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 to dispose of our appeal filed
before him. Accordingly, he submitted that the Tribunal, 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
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7. We have heard Ld D.R on this matter and perused the record. We notice
that all the contentions urged by the Ld A.R were considered 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 specifically stated that the Appeal
against the said order lies before the Tribunal. The Cochin bench has addressed
all the contention and hence, for the sake of convenience, we extract below the
order passed by the Cochin bench of ITAT in the above cited case.
"2. None appeared before us when the appeal was taken for hearing.
However, an application was filed for adjournment on behalf of the
assessee on the ground of personal inconvenience. This Tribunal is of the
considered opinion that the issue raised in this appeal is covered matter
against the assessee. Therefore, it may not be necessary 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 the 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 hereunder:
" 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 Tribunal 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 section 253 of the Act. Section 253 provides for an
appeal before this Tribunal against the orders mentioned therein.
For the purpose of clarity, the provisions of section 253 are
reproduced hereunder:
253(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 Commission (Appeals) before the
1st 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
I.T.A. No.6040/Mum/2012
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(b) An order passed by an Assessing Officer under clause ( c) of
section 158BC, in respect of search initiated under section132 or
books of account, other documents or any assets requisitioned
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 under 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 sub-section *3),
of section 143 or section 147 in pursuance 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 of the Income Tax
department levying penalty u/s 271FA is appealable before this
Tribunal. This Tribunal being a quasi judicial authority established
under the provisions of the Income Tax Act cannot travel beyond
the provisions of the Act. Therefore, unless and until an appeal is
specifically provided 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 Director 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 Tribunal under Party
B of Chapter XX of the Income Tax Act. It is well settled principles
of law that consent of a litigant party will not confer any jurisdiction
of a judicial or quasi judicial authority unless and until it is
otherwise conferred by the legislature. Therefore, the
consent/direction of the Director of Income Tax (Intelligence) will
not confer any jurisdiction on this Tribunal unless sit is provided for
in the income tax Act by the Parliament. Hence, this Tribunal could
not entertain the appeal filed by the Sub Registrar, Meppaayur-
Kozhikode,
6. Coming to the contention of the ld DR that appeal 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 246A(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 provided 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 (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 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 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 appeal.
7. Further, we are of the considered opinion that when 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 appeal is
provided against the order of penalty u/s 271 in 253(1)(a) and
253(10(c ) of the Act, therefore, all branches of section 271 i.e.
from 271A to 271G are included in section. This argument may not
be correct because section 271 is an indepe3ndent section 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 the Act Therefore,
the legislature treated sections 271 and 271A as separate and
independent sections. In other words, sections 271A to 271G are
independent and separate sections and it is not part/branch of
sections 271 of the Act. Therefore, argument, if any that section
271FA is part of section 271 is not correct. This Tribunal is of the
considered opinion hat section 271FA is separate and independent
of section 271 and therefore, the reference of section 271 in
section 253(1)(a) or 253(1)( c) may not be included section
271FA. As already observed, the omission to include section
271FA in section 253 may be unintended. Therefore, it is open to
the department to bring to the notice of the concerned authority
about the omission to provide appeal before the Tribunal for
making consequential amendment to section 253 of the Act in case
the department found that the omission is unintended.
8. In view of the above discussion, the appeal of the 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-Kozhikode to challenge the order passed by
the Director of Income Tax (Intelligence) levying penalty u/s
271FA of the act before the appropriate forum in a manner known
to law."
I.T.A. No.6040/Mum/2012
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3. In view of the order of this Tribunal (supra), we are of the considered
opinion that these appeals are not maintainable before this Tribunal
against the order of the Director of Income Tax (Intelligence) levying
penalty u/s 271FA of the Act. However, the assessee is at the liberty to
challenge the impugned order of the Director of Income Tax (Intelligence)
before the appropriate forum in a manner known to law. With this
observation, the appeals filed by the assessee stands dismissed."
8. We concur with the view taken by the cochin bench of Tribunal in the
above said case and accordingly hold that the present appeal is not maintainable
before us. Since we cannot admit the present appeal, the question of condoning
the delay also does not arise.
9. In the result, the appeal filed by the assessee is dismissed in limine as
unadmitted.
The above order was pronounced in the open court on 28th Aug, 2014.
28th th Aug, 2014
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. () / The CIT(A)- concerned
4. / CIT concerned
5. , , /
DR, ITAT, Mumbai concerned
6. / Guard file.
/ BY ORDER,
True copy
(Asstt. Registrar)
, /ITAT, Mumbai
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