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Income Tax Appellate Tribunal - Bangalore

The Chief Executive Officer Bijapur ... vs The Director Of Income Tax , Bangalore on 12 September, 2018

               IN THE INCOME TAX APPELLATE TRIBUNAL
                        "C" BENCH : BANGALORE

          BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER
          AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER


                           ITA No. 1681/Bang/2017
                          Assessment year : 2017-18

  The Chief Executive Officer,       Vs.   The Director of Income Tax
  Bijapur Sahakari Bank Ltd.,              (Intelligence & Criminal
  1st Floor, Yogesh Chambers,              Investigation),
  Old SS Temple Road,                      Bengaluru.
  Bijapur - 586 101.
  PAN: AAAAB 3515A
           APPELLANT                                    RESPONDENT


Appellant by  : Shri V.K. Gurunathan, Advocate
Respondent by : Dr. P.V. Pradeep Kumar, Addl.CIT(DR)(ITAT), Bengaluru.

                 Date of hearing       : 10.09.2018
                 Date of Pronouncement : 12.09.2018

                                   ORDER

    Per N.V. Vasudevan, Judicial Member

This is an appeal by the assessee is against the order dated 12.7.2018 of the Director of Income Tax (Intelligence & Criminal Investigation) imposing a penalty on the u/s. 271FA of the Income-tax Act, 1961 ["the Act"] for non-filing of statement of financial transactions or reportable accounts for cash deposits u/s. 258BA(2) of the Act r.w. Rule 114E of the Income-tax Rules, 1962 ["the Rules"].

2. The appeal by the assessee before the Tribunal against the impugned order is not maintainable and is liable to be dismissed in limine. A similar appeal was filed by Raichur City Urban Co-operative Bank Ltd. and this Tribunal in ITA No.1147/Bang/2015 vide order dated 26.4.2017 dismissed the aforesaid appeal as not maintainable. The Tribunal took the following view, after referring to the powers of the Tribunal u/s.253 of the Act :-

6. From the reading of the sec. 253, it abundantly clear that if the order passed by the CIT(A) and the order passed by the authorities as mentioned in 253, then the appeal of the said authority lies with the Tribunal. However appeal against the orders passed by the AO or any authority exercising similar power lies before the CIT(A) u/s 246A of the Act. The section 246A(j)(B) provided filing the appeal before the CIT(A). The provision of sec.

246A(j)(B) provides as under:-

Section 271, Section 271A, [Section 271AAA,] [Section 271AAB,] Section 271F, [Section 271FB,] Section 272AA or Section 272BB;

7. In our view, the filing of an appeal is a statutory right provided by the statute and which is to be exercised by the assessee in the manner as provided by the Act. The Act provides appeal can be filed against the order u/s 271FA before the CIT(A) under section 264(J)(B) of the Act and, therefore, the appeal filed by the assessee before us is without any jurisdiction as it was to be filed before CIT(A). The Hon'ble Supreme Court in the matter of Arcot Textile Mills Ltd., Vs. The Regional Provident Fund Commissioner & Others in CA NO.9488/2013 (Arising out of S.L.P (C) No. 13410/2012) decided on 18-10-2013 had held in paragraph 17 as under:-

17. Ms. Aparna Bhat, learned counsel for the respondent Nos. 1 to 3 would contend that the payment of interest by the employer in case of belated payment is statutorily ITA No.1681/Bang/2017 Page 3 of 5 leviable and a specified rate having been provided, the authority has no discretion and, therefore, it is only a matter of computation and there cannot be any challenge to it. Be it noted, it was canvassed by the said respondents before the High Court that an appeal would lie against an order passed under 7Q. On a scrutiny of Section 7I, we notice that the language is clear and unambiguous and it does not provide for an appeal against the determination made under 7Q. It is well settled in law that right of appeal is a creature of statute, for the right of appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. This being the position a provision providing for appeal should neither be construed too strictly nor too liberally, for if given either of these extreme interpretations, it is bound to adversely affect the legislative object as well as hamper the proceedings before the appropriate forum. Needless to say, a right of appeal cannot be assumed to exist unless expressly provided for by the statute and a remedy of appeal must be legitimately traceable to the statutory provisions. If the express words employed in a provision do not provide an appeal from a particular order, the court is bound to follow the express words. To put it otherwise, an appeal for its maintainability must have the clear authority of law and that explains why the right of appeal is described as a creature of statute. (See: Ganga Bai v. Vijay Kumar and others[3], Gujarat Agro Industries Co. Ltd. v. Muncipal Corporation of the City of Ahmedabad and Ors.[4], State of Haryana v. Maruti Udyog Ltd. and others[5], Super Cassettes Industries Limited v. State of U.P. and another[6], Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another[7], Competition Commission of India v. Steel Authority of India Limited and another[8])

8. In the present case, the language of sec. 246A(j)(B) is clear and unambiguous, therefore it is held the assessee has remedy by way of filing an appeal before the CIT(A) against ,the order imposing a penalty u/s 271FA and not by filling the appeal before us . The argument of the assessee that the Director of Income-tax (Intelligence & Criminal Investigation) is equivalent to the CIT(A) and, therefore, the CIT(A) cannot hear the appeal against the ITA No.1681/Bang/2017 Page 4 of 5 order passed by the equivalent officer in our view is not sustainable and we also do not subscribe the view of the coordinate bench in the matter of Raibareilly District Co-

operative Bank Ltd., (Supra). In our view the jurisdiction of the Tribunal cannot be provided by way of convenience or interpretation, it is to provided by the statute and since there is no provision for hearing he appeal against the order passed by the authority u/s 271FA by the Tribunal, therefore, we do not deem it appropriate to deal with the appeal filed by the assessee, as the tribunal is not having the jurisdiction to entertain the appeal. Accordingly, the appeal filed by the assessee is dismissed as the Tribunal has no jurisdiction.

9. However the assessee may file the appropriate remedy before the CIT(A) if so advised and we expect the ld CIT(A) to pass an appropriate order without being influenced by the order passed by the Director of Income- tax (Intelligence & Criminal Investigation) and he will also consider the condonation of delay in filing the appeal before him in view of the pendency of the appeal before this Tribunal. In view of the above, the appeal is dismissed.

10. In the result, the appeal filed by the assessee is dismissed."

3. The present appeal filed by the assessee is not maintainable for the reasons given by the Tribunal in the order cited above. We therefore dismiss the appeal of the assessee. We, however, allow liberty to the assessee to seek proper remedy in accordance with the law as observed by the Tribunal in para 9 of the order quoted above.

4. In the result, the appeal by the assessee is dismissed.

Pronounced in the open court on this 12th day of September, 2018.

                Sd/-                                              Sd/-


     ( G. MANJUNATHA )                            ( N.V. VASUDEVAN)
       Accountant Member                              Judicial Member

Bangalore,
Dated, the 12th September, 2018.

/ Desai Smurthy /

Copy to:

1.    Appellant
2.    Respondent
3.    CIT
4.    CIT(A)
5.    DR, ITAT, Bangalore.
6.    Guard file

                                                 By order



                                           Senior Private Secretary
                                             ITAT, Bangalore.