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(3) However, taking notice of the fact that penalty under Sec. 271FA was also referred to in Sec. 273B of the Act, it is felt by the assessee-appellant that such levy is not MANADOTRY as in the case of levy of Int. under Sec. 234-A & 234B etc., and that such levy is only DISCREATIONARY and hence there lies an appeal against the order under Sec. 271FA as per the provisions of Law.

(4) That as per the provisions contained in clause "6" appended to Sub Sec. 1 of Sec. 253 of the Act, an order passed by the Principal CIT/CIT under Sec. 271 of the Act is also construed to be an order which could be appealed against before the Hon'ble ITAT.

9.4 However, the fact remains in the instant case is that the assessee's Status cannot be regarded as a COOP. Bank as per the decisions of the Hon'ble ITAT in assessee's same case for the A.Y. 2012-13 and even as per the latest order of the Hon'ble Supreme Court for the A.Y. 2009-10 as envisaged above. Thus the provisions contained in Sec. 285BA read with Rule 114E of the Act are not applicable to the assessee's case and thus the LEVY UNDER SEC. 271FA may be VOID ABINITIO. Hence, it is prayed that the impugned PENALTY UNDER SEC. 271FA may be ordered to be SET ASIDE treating the same as NON EST. IN LAW".

5. We have considered the rival contentions and perused the provisions of the Act. Section 271FA is a penalty which is leviable by the prescribed Income Tax authority. The order of the DIT indicates that he is nominated to be by the Income Tax authority for accepting the returns to be filed u/s. 285BA(1). Therefore, it seems the DIT has invoked the powers of 271FA for levying of penalty. Even though there is no specific provision for appeal before this forum, nor before the CIT(A), Ld.DIT specifically gave the option to assessee to file the appeal before the Ld.CIT(A). Assessee, however took its own opinion, in the absence of clarification sought from DIT(I&CI) and preferred the appeal before this forum.

6. However, before concluding it is not out of place to state that the Paper Book furnished before this forum indicates that assessee did in fact file statement u/s. 285BA(1) before the Income Tax authorities so the penalty levied for not filing u/s 271FA does not arise. Vide a letter dt.27-10-2016, the ITO, HQrs., in the Office of DIT(I&CI) informed the assessee that in about 120 number of transactions, PAN was not mentioned. It was further informed that "it may be noted that furnishing of incomplete and incorrect information is liable for penalty u/s. 271FAA of the Act". Assessee was asked to update the data by quoting PAN by 04-11-2016. However, the DIT(I&CI) issued a show cause notice dt. 31-10- 2016 (i.e., within the time given to assessee for rectifying the return) as to why a penalty u/s. 271FA should not be levied. As placed on record, an explanation was indeed filed by assessee on 06-12- 2016, asking for a fortnight time and further another letter was filed on 28-12-2016 explaining the factual and legal position with reference to levy of penalty u/s. 271FA. There is no mention ITA Nos 1291 to 1296 of 2017 Nizamabad Distt Coop Central Bank Ltd Nizamabad.