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The present appeal has been filed by the Assessee against the order dated 27.11.2018 passed by the Director of Income Tax (I&CI), Ahmedabad, as against the Penalty order passed under section 271FA of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') relating to the Assessment Year (A.Y) 2017-18.

Honey Dew Holiday & Forex P. Ltd. vs. DIT(I&CI)

2. The Registry has noted that there is a delay of 189 days in filing the above appeal. The assessee has filed for condonation of delay by way of an affidavit stating that the impugned order was received by the Accountant of the assessee company and misplaced by him. After the follow up action was by the Director, the misplaced order was found and resultant in filing this appeal with a delay of 148 days (189 days as noted by the Registry) in filing the above appeal. None appeared on behalf of the assessee in spite of service of notice.

3. The Ld. Sr. D.R. Mr. R.R. Makwana appearing for the Revenue submitted before us that this appeal is not maintainable u/s. 253 of the Act as against an order passed by the Director of Income Tax (I&CI) levying penalty u/s. 271FA r.w.s. 274 of the Act. The Ld. D.R. also placed reliance on Cochin Bench Tribunal in the case of SRO vs. Director of Income-tax (Intelligence), Kochi [2016] 69 taxmann.com 364 wherein it is held as follows:

3. In fact this Tribunal examined the maintainability of the appeal against the order levying penalty u/s 274 r.w.s. 271FA of the Act in SRO, Meppayur-Kozhikode v. DIT (Intelligence) [2013] 37 taxmann.com 36/[2014] 64 SOT 10 (URO)(Cochin). After examining the provisions of the Act, this Tribunal found that no appeal is provided under the Act against the penalty levied u/s 271 FA of the Act. Hence, the appeal filed by the assessee before this Tribunal against the order levying penalty u/s 271 FA is not maintainable. In fact, this Tribunal found as follows:

7. Further, we are of the considered opinion that when the provisions of section 271 FA was introduced in the statute 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 Honey Dew Holiday & Forex P. Ltd. vs. DIT(I&CI) order of penalty u/s 271 in 253(l)(a) and 253(l)(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(l)(a) and 253(1 )(c) itself. The legislature has mentioned sections 271 and 271A separately in section 253(l)(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 271 FA is separate and independent of section 271 and therefore, the reference of section 271 in section 253(l)(a) or 253(l)(c) may not be included section 271FA. As already observed, the omission to include section 271 FA 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.

4.1. It is settled principle of law that 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 271 FA is appealable before this Tribunal. Income Tax Appellate Tribunal being a quasi judicial authority established under the provisions of the Income-tax Act cannot travel beyond the provisions of the Income Tax Act. Therefore, unless and until an appeal is specifically provided in section 253 of the Act, against the order levying penalty u/s 271FA, we are of the considered opinion that the present appeal is not maintainable before this Tribunal.