SUB-REGISTRAR THANE-8,NAVI MUMBAI vs. DIT (INTELLIGENCE & CRIMINAL INVESTIGATION), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL "G" BENCH, MUMBAI

SHRI B.R. BASKARAN, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER

ITA No. 650/MUM/2017 (Assessment Year: 2014-15) & ITA No. 651/MUM/2017 (Assessment Year: 2015-16)

Sub-Registrar Thane-8, Mr. Sainath Keshav Chaubal, Shanti Suman Bldg, Plot No. C-379, Sector-19, Near Vijaya Bank, Koparkharne, Navi Mumbai - 400079

[TAN: MUMS50149B] ……………… Appellant

Director of Income Tax, Vs

(Intelligence & Criminal Investigation), Ernest House, 12th Floor, Opp. NCPA2,

Nariman Point, Mumbai - 400021 ……………. Respondent

Appearances

For the Appellant/Assessee :None

For the Respondent/Department :Shri Bomakesh Pradip Kumar Panda

Date of conclusion of hearing Date of pronouncement of order : : 16.11.2022 23.01.2023

O R D E R

Per Rahul Chaudhary, Judicial Member:

- 1. These are two appeals preferred by the Sub-Registrar,Thane-8, against two separate orders dated 15.07.2016 and 21.11.2016, passed by the Director of Income Tax (Intelligence & Criminal Investigation), Mumbai [hereinafter referred to as 'the DIT'] levying penalty of INR 1,21,000/- and INR 3,18,700/- under Section 271FA of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') for the Financial Years 2014-15 and 2015-16, respectively. - 2. When the appeals were taken up for hearing, none was present

for the Appellant. The Ld. Departmental Representative submitted that none has been appearing for the Appellant for last few hearings. Placing on record, the judgment of Hon'ble Rajasthan High Court in the case of Director of Income Tax (CIB) vs. Ravi Vijay: [2012] taxmann.com 176 (Raj.) he submitted that the present appeals were not maintainable in view of the provisions contained in Section 246A(1)(q) of the Act as the order passed by the Director of Income Tax who holds the ranks of Commissioner are appealable before the Commissioner (Appeals). Thus, the Appellant has incorrectly filed the present appeals before the Tribunal instead of approaching the Commissioner (Appeals), and therefore, the same be dismissed as not maintainable.

- 3. We have perused the above judgment of the Hon'ble Rajasthan High Court wherein it has been clearly held that appeal against order of penalty imposed under Section 271FA of the Act (falling under Chapter XXI) is maintainable before the Commissioner of Income Tax (Appeals). The relevant extract of the judgment of the Hon'ble Rajasthan High Court read as under: - "6. The question before this Court is whether an order passed under Section 271 FA of the 1961 Act by the Director Income Tax, who holds the rank of a Commissioner in the Income Tax Department is appealable under Section 246A(1)(q) of the 1961 Act to the Commissioner Appeals. Section 246A(1)(q) of the 1961 Act provides for appeals before the Commissioner Appeals against an order of penalty passed under Chapter 21 of the 1961 Act. Section 271FA admittedly falls within Chapter 21 of the 1961 Act. To my mind therefore on a plain reading of the said provision an appeal against an order

passed by an officer of the rank of Commissioner Income Tax under Section 271FA of the 1961 Act is maintainable before the Commissioner Appeals. From a mere reading of the provision for filing appeals against orders passed under Section 271 and 272A (also under Chapter XXI) of the 1961 Act before the ITAT, this Court cannot on analogy hold that because the said orders passed by an officer of the rank of Commissioner of Income Tax should also be appealable before the ITAT. In my considered view even though orders of penalty under Section 271 and 272A of the 1961 Act fall under Chapter XXI, appeals therefrom stand excluded before the Commissioner Appeals under the general provisions of Section 246A(1)(q) by virtue of a specific provision under Section 253(1)(c) of the (Chapter XXI) of 1961 Act. Consequently, in my view an order under Section 246A(1)(q) of the 1961 Act and no amount of interpretative exercise can displace law as enacted. Further it is an admitted fact that in the course of the demand notice under Section 156 of the 1961 Act following the order of penalty under Section 271FA of the 1961 Act, the assessee was informed that the said order was appealable before the jurisdictional Commissioner (Appeals) in the instant case Commissioner Appeals III Jaipur."

ITA. No. 650 & 651//Mum/2017 Assessment Years: 2014-15 & 2015-16

Tax (Appeals) as per law. Since we have not examined the merits of the matter, all the rights and contentions are left open.

Order pronounced on 23.01.2023.

Sd/- Sd/- (B.R. Baskaran) Accountant Member

(Rahul Chaudhary) Judicial Member

म ुंबई Mumbai; दिन ुंक Dated : 23.01.2023

Alindra, PS

आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to :

- 1. अपील र्थी / The Appellant - 2. प्रत्यर्थी / The Respondent. - 3. आयकर आय क्त(अपील) / The CIT(A)- - 4. आयकर आय क्त / CIT - 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai - 6. ग र्डफ ईल / Guard file.

आिेश न स र/ BY ORDER,

सत्य दपि प्रदि //True Copy//

उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदिकरण, म ुंबई / ITAT, Mumbai