Income Tax Appellate Tribunal - Bangalore
Raichur City Urban Co-Operative Bank ... vs Dit, Bangalore on 26 April, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL,
BANGALORE BENCH, 'B', BANGALORE
BEFORE SHRI INTURI RAMA RAO ACCOUNTANT MEMBER
SHRI LALIET KUMAR, JUDICIAL MEMBER
ITA No.1147/Bang/2015
(Asst. Year 2012-13)
Raichur City Urban CO-operative
Bank Ltd.,
Gunj Road, Raichur-584 102. . Appellant
Vs.
The Dy. Director of Income-tax Intelligence
& Criminal Investigation,
Bengaluru. . Respondent
Appellant by : Shri B.S Sudheendra, C.A
Respondent by : Shri G Kamaladar, Standing Counsel
Date of Hearing : 19-4-2017
Date of Pronouncement : 26-4-2017
ORDER
PER LALIET KUMAR, JUDICIAL MEMBER
This appeal by the assessee is directed against the order passed by ITA No.1147/ /B/15 2 the Director of Income-tax (Intelligence & Criminal Investigation), Bangalore dated 17th Jun, 2015 for the assessment year 2012-13.
2. The assessee has raised the following grounds of appeal:
"1. The learned Director of Income tax has erred in holding that the provisions of Section 271FA of the IT. Act, 1961 are attracted in case of the appellant and in levying a sum of Rs. 65.500/- as penalty.
2. The appellant had not committed any default attracting penalty. The penalty has been levied on an erroneous appreciation of facts is to be deleted in entirety
3. The appellant had complied with provisions of law and thus there would be no default, the penalty levied has to be cancelled.
4. In view of the above and on other grounds to be adduced at the time of hearing, it is requested that the order be quashed or at least the penalty levied be ITA No.1147/ /B/15 3 cancelled."
3. The brief facts of the case are that the assessee in the present case was required to file annual information return for the financial year 2012- 13 on or before 31/8/2013 in respect of the transaction specified in sub Rule (2) of Rule 114E of the Income-tax Rules. However, the assessee has failed to file annual information return within the time stipulated. Pursuant thereto a show cause notices was issued to the assessee. However no response to the above show notice was filed even after the lapse of more than 12 months from the date of issuance of notice u/s 283BA(5) of the Act. Therefore a shown cause notice u/s 271FA of the Income-tax Act 1961 was issue. Despite that the assesee bank failed to file any reply to the show cause notice as such, the Officer imposed penalty of Rs.65,500/- u/s 271FA on the assessee.
4. Feeling aggrieved by the order, the assessee filed an appeal before us and has submitted that the order passed by the authority below is required to be satisfied and it was enquired by the Bench as to how the order passed by the authority Director of Income-tax (Intelligence & ITA No.1147/ /B/15 4 Criminal Investigation), passed u/s 271FA can be challenged before the Tribunal without availing an opportunity of filing statutory appeal before the CIT(A). In response thereto, the ld AR has submitted that though there is statutory remedy provided in the Act and on account of the Act officer who passed the order is equivalent to the CIT(A) and, therefore, the order has not been challenged before the CIT(A) u/s 246A(1) of the Act. The learned AR has further relied upon the judgment of the order passed by the Lucknow Tribunal in the matter of Raibareilly District Co-operative Bank Ltd., 54 taxmann.com 382, wherein on the identical issue, the coordinate Bench in paragraph 15 to 17 held as under:-
"15. We have also carefully examined the provisions of section 253(1) of the Act, in which the order of the Assessing Officer, which has been passed with the approval of the Commissioner of Income-tax pursuant to the Dispute Resolution Panel comprising of the Commissioner of Income-tax, can only be challenged before the ITAT by filing an appeal. In the light of these facts. when the order of the Assessing Officer passed with the approval of the Commissioner of Income-tax can only be challenged before the .1 ribunal. then how the order of ITA No.1147/ /B/15 5 the Director of Income-tax who is equivalent in rank with the Id. CIT( A ) can be chalkalged before the Id. CIT(A). The only forum where this order of the Director of Income- tax can he challenged is the I-FAT which is higher in rank to the Director of Income-tax.
16. So far as the view taken in other appeal, styled as Hardoi ('o-perative Bank (supra) is concerned, we find that while adjudicating the impugned issue in that appeal. the argument with regard to the appellate jurisdiction was not advanced and relying upon the provisions of section 246A(1) of the Act. the issue was adjudicated. Now, during the course of hearing of this appeal, the arguments were advanced with respect to the definition of appellate jurisdiction and provisions of section 253(1) of the Act. Therefore, we have decided to re-appreciate the arguments advanced by the parties in the light of the aforesaid provisions.
17. With these observations, we are of the view that the appeal by the assessee has been rightly filed before the Tribunal and the Tribunal is competent to adjudicate the appeal on merit. Accordingly we reject the preliminary objection of the Revenue with regard to the maintainability of the appeal before the Tribunal. Accordingly we direct ITA No.1147/ /B/15 6 the Registry to fix this appeal for hearing on merit on 10.2.2015."
5. The jurisdiction of the Tribunal to hear the appeal is provided u/s 253 of the Act which is reproduced herein below:
Section 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 Commissioner (Appeals)] [or, as the case may be, a Commissioner (Appeals)] under before the 1st day of October, 1998 [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 [(d)
(e) [Principal Commissioner or] Commissioner [under section 12AA [or under clause (vi) of sub-section (5) of section 80G] or] under section 263[or under section 272A] [or under section 271] [***] or an order passed by him under section 154 amending his order under section 263] [or an order passed by a [Principal Chief Commissioner or] Chief Commissioner or a [Principal Director General or] Director General or a [Principal Director or] Director under section 272A; [or]] an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147[or ITA No.1147/ /B/15 7 section 153A or section 153C] in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order;] [***] Following clause (e) shall be inserted after clause (d) of sub-section (1) of section 253 by the Finance Act, 2013, w.e.f. 1-4-2016 :
(e) an order passed by an Assessing Officer under sub-section (3) of section 143 or section 147 or section 153A or section 153C with the approval of the [Principal Commissioner or]Commissioner as referred to in sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order; [ (f) an order passed by the prescribed authority under sub-clause
(vi)or sub-clause (via)of clause (23C)of section 10.] (2) The [Principal Commissioner or] Commissioner may, if he objects to any 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 or] section 250, direct the [Assessing] Officer to appeal to the Appellate Tribunal against the order.
[(2A) The [Principal Commissioner or] Commissioner may, if he objects to any direction issued by the Dispute Resolution Panel under sub-section (5) of section 144C in respect of any objection filed on or after the 1st day of July, 2012, by the assessee under sub- section (2) of section 144C in pursuance of which the Assessing Officer has passed an order completing the assessment or reassessment, direct the Assessing Officer to appeal to the Appellate Tribunal against the order.] (3) Every appeal under sub-section (1) or sub-section (2) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the [Principal Commissioner or] Commissioner, as the case may be :
[Provided that in respect of any appeal under clause (b) of sub- section (1), this sub-section shall have effect as if for the words "sixty days", the words "thirty days" had been substituted.] [(3A) Every appeal under sub-section (2A) shall be filed within sixty days of the date on which the order sought to be appealed against is passed by the Assessing Officer in pursuance of the directions of the Dispute Resolution Panel under sub-section (5) of section 144C.] ITA No.1147/ /B/15 8 [(4) The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) or the Assessing Officer in pursuance of the directions of the Dispute Resolution Panel has been preferred under sub-section (1) or sub-section (2) or sub-section (2A) by the other party, may, notwithstanding that he may not have appealed against such order or any part thereof; within thirty days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Assessing Officer (in pursuance of the directions of the Dispute Resolution Panel) or Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3) or sub-section (3A).] (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
[(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made, on or after the 1st day of October, 1998, irrespective of the date of initiation of the assessment proceedings relating thereto, be accompanied by a fee of,--
(a) where the total income of the assessee as computed by the Assessing Officer, in the case to which the appeal relates, is one hundred thousand rupees or less, five hundred rupees,
(b) where the total income of the assessee, computed as aforesaid, in the case to which the appeal relates is more than one hundred thousand rupees but not more than two hundred thousand rupees, one thousand five hundred rupees,
(c) where the total income of the assessee, computed as aforesaid, [(d) in the case to which the appeal relates is more than two hundred thousand rupees, one per cent of the assessed income, subject to a maximum of ten thousand rupees, where the subject matter of an appeal relates to any matter, other than those specified in clauses
(a), (b) and (c), five hundred rupees:] ITA No.1147/ /B/15 9 Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub- section (4).
(7) An application for stay of demand shall be accompanied by a fee iof five hundred rupees.]
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 ITA No.1147/ /B/15 10 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 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 ITA No.1147/ /B/15 11 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 ITA No.1147/ /B/15 12 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 order passed by the equivalent officer ITA No.1147/ /B/15 13 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.
ITA No.1147/ /B/15 14
10. In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open court on 26th April, 2017.
Sd/- Sd/-
(INTURI RAMA RAO) (LALIET KUMAR)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Bangalore
Dated : 26/04/2017
Vms
Copy to :1. The Assessee
2. The Revenue
3.The CIT concerned.
4.The CIT(A) concerned.
5.DR
6.GF By order
Asst. Registrar, ITAT, Bangalore.