Income Tax Appellate Tribunal - Cochin
The Sub Registrar, Kannur vs Assessee on 24 July, 2013
1
ITA No. 212/Coch/2013
S.A. No.42/Coch/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
COCHIN BENCH, COCHIN
Before Shri N.R.S. Ganesan (JM) and Shri B.R. Baskaran(AM)
I.T.A No. 212/Coch/2013
(Assessment year 2011-12)
&
S.A. 42/Coch/2013
(Arising out of I.T.A No. 212/Coch/2013)
(Assessment year 2011-12)
The Sub Registrar vs The DIT (Intelligence)
Sub Registrar Office Kandamkolathy Towers
Alakode M.G. Road, Kochi 682 011
Kannur Dist
PAN : BAZPA0862N
(Appellant) (Respondent)
Appellant by : Smt. Divya Ravindran
Respondent by : Smt. S Vijayaprabha
Date of hearing : 24-07-2013
Date of pronouncement : 24-07-2013
ORDER
Per N.R.S. Ganesan (JM) The Sub Registrar, Alakode filed the present appeal against the order of the Director of Income-tax (Intelligence), Kochi dated 28-02-2013 levying penalty u/s 271FA of the Act.
2 ITA No. 212/Coch/2013 S.A. No.42/Coch/20132. When the appeal was taken up for hearing, the ld.counsel for the assessee Smt. Divya Ravindran, and the ld.DR Smt. S Vijayaprabha submitted that the appeal is not maintainable in view of the order of this Tribunal in the case of SRO, Meppayur-Kozhikode vs DIT (Intelligence) in ITA No.280/Coch/2013 and S.P. No.50/Coch/2013 order dated 18-07- 2013. The ld.counsel for the assessee has filed a copy of the order of this Tribunal in SRO, Meppayur-Kozhikode (supra).
3. We have carefully gone through the order of this Tribunal in SRO, Meppayur-Kozhikode (supra). For the purpose of convenience, the relevant portion of the order of this Tribunal is reproduced as under:
"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 -3 ITA No. 212/Coch/2013 S.A. No.42/Coch/2013
(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 271, section 271A 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 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
(d) 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 4 ITA No. 212/Coch/2013 S.A. No.42/Coch/2013 Act cannot travel beyond the provisions of the Act. Therefore, unless and until an appeal is specifically provided in 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 Part 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 on 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 it is provided for in the Income-tax Act by the Parliament. Hence, this Tribunal could not entertain the appeal filed by the Sub Registrar, Meppayur-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) under section 246A(q) of the Act. 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 u/s 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 5 ITA No. 212/Coch/2013 S.A. No.42/Coch/2013 book by the Finance Act, 2004 with effect from 01-04-2005 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(1)(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 independent 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 that 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.
9. With the above observations, the appeal of the Sub Registrar, Meppayur-Kozhikode is dismissed. Consequently, the stay petition in S.A. No.50/Coch/2013 is also dismissed."
6 ITA No. 212/Coch/2013 S.A. No.42/Coch/20134. In view of the above order of this Tribunal and the identical set of facts, this Tribunal is of the considered opinion that the appeal filed by the Sub Registrar, Alakode against the order of the Director of Income-tax (Intelligence), Kochi levying penalty u/s 272FA is not maintainable.
However, the Sub Registrar, Alakode is at liberty to challenge the order passed by the Director of Income-tax (Intelligence), Kochi levying penalty u/s 272FA before the appropriate forum in a manner known to law.
5. With the above observations, the appeal of the Sub Registrar, Alakode is dismissed. Consequently, the stay petition in S.P. No.42/Coch/2013 is also dismissed.
Order pronounced in the open court on this 24th July, 2013.
Sd/- sd/-
(B.R. Baskaran) (N.R.S. Ganesan)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Cochin, Dt : 24th July, 2013
pk/-
copy to:
1. The appellant
2. The respondent
3. The Commissioner of Income-tax
4. The Commissioner of Income-tax(A)
5. The DR
(True copy) By order
Asstt. Registrar, Income-tax Appellate Tribunal, Cochin Bench