AGRAWAL CONSUMABLE PRODUCTS PRIVATE LIMITED,BHILAI vs. DIRECTORE OF INCOME TAX (I&CI), BHOPAL

This appeal is filed by the assessee against the order passed by the DIT(I&CI), Bhopal, dated 25.03.2019 for the assessment year 2017-2018, on the following grounds :-

Now, the assessee is in further appeal against the above order of ld. DIT(I&CI).

At the outset, ld. Sr. DR submitted that the appeal of the assessee is not maintainable before this Tribunal and in this regard, he relied on an order of the Tribunal dated 29.04.2022 passed in in the case of Sub-Registrar, Sakti Vs. DIT(I&CI).

We have perused the order of the Tribunal dated 29.04.2022 (supra) and found that as per the observations made by the coordinate bench of the Tribunal, the present appeal of the assessee is not maintainable. The observations of the Tribunal in this regard are as under:- 6. From the careful perusal of provision of section 253, it reveals that, the order levying penalty u/s.271FA does not find place in either of the sub-section so as to enter directly for adjudication before the second appellate authority i.e. Tribunal. In the absence of specific entry entitling the aggrieved to reach the final fact finding authority, the jurisdiction to entertain the appeal prima-facie fails, au contraire the clause (q) of sub-section (1) of section 246A makes clear enabling provision for the first appellate authority to entertain any order of penalty passed under chapter XXI of the Act without reference to authority passing the order. From a mere reading of the provision for filing appeal against order passed u/s 271 and 272A (also under Chapter XXI) of the 1961 Act before the ITAT, we cannot on analogy hold that because the said order was passed by an officer of the rank of CIT is directly appealable before the ITAT u/s 253 of the 1961 Act, hence an order u/s 271 FA of the 1961 Act also passed by an officer of the rank of CIT should also be appealable before the ITAT.

We are not unmindful to the fact that, the CIT(A) is equivalent in rank that of the DIT(I&CI), therefore, the appeal before CIT(A) may not be an effective and efficious remedy available to the Sub Registrar, Sakti 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 any jurisdiction to this Tribunal to entertain this appeal.

Per contra, a Careful perusal of section 246A(1)(q) of the Act reveals that, an appeal can lie before the CIT(A) against any order of penalty passed under Sub-Registrar-Sakti, A K :2014-2015 ITA No :51/RPR/2018, TAN: JBPS047441' Chapter XXI of the Act, and section 271 FA admittedly falls within the Chapter XXI of the Act, and such entry does not distinguish the authority by whom it is passed under the provisions of the Act. Therefore on a plain reading of the said provision, an appeal against an order passed u/s 271 FA of the Act, by any authority including an officer of the rankofCIT per legem is maintainable before the CIT(A). In our considered view even though an order of penalty u/s 271 and 272A of the 1961 Act fall under Chapter XXI, appeal therefrom stand excluded before the CIT(A) under the general vis-a-vis blanket provision of Section 246A(1 )(q) by virtue of a specific provision u/s 253(1 )(c) of the 1961 Act. Consequently, in our view the impugned order passed u/s 271 FA (Chapter XXI) of the Act, is plainly appealable u/s 246A(1)(q) of the Act and no amount of interpretative exercise can displace law as enacted. 9. It is apropos to quote the aforesaid view has been fortified by the Hon'ble High Court of Rajasthan in the case of "DIT (CIB) Vs Shri Ravi Vijay & Anr." And DIT(CIB) Vs Balu Ram & Anr. (SB Civil Petition 11458/2011 & 11914/2011), a similar view has also found taken by the co-ordinate bench of the Tribunal in "Sub-Registrar, Nakodar Vs DIT" reported in 57 DTR 497, "Sub-Registrar, Kannur Vs DIT(intelligence)" (ITA No 238/Coch/2013). 10. In view of the above, this Tribunal is of the considered opinion that the appeal filed by the Sub Registrar, Sakti is not maintainable before this Tribunal, however, the Sub Registrar is at liberty to challenge the impugned order passed by the DIT(I&CI) levying penalty u/s 2171 FA of the act before an appropriate forum in a manner known to law, with the above observations, the appeal of the Sub Registrar, Sakti is dismissed. 6. Respectfully following the above observations of the coordinate bench of the Tribunal, we also dismiss this appeal of the assessee holding the same as not maintainable.