IT: Where Joint Commissioner levied penalty under section 272A(2)(c) upon assessee, penalty order was appealable before Commissioner (Appeals) under section 246A(1)(q) and assessee was wrong in directly filing appeal before Tribunal
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[2013] 37 taxmann.com 385 (Cochin - Trib.)
IN THE ITAT COCHIN BENCH
Branch Manager, Punjab National Bank
v.
Income-tax Officer (Intelligence), Cochin*
N.R.S. GANESAN, JUDICIAL MEMBER
AND B.R. BASKARAN, ACCOUNTANT MEMBER
AND B.R. BASKARAN, ACCOUNTANT MEMBER
IT APPEAL NO.346 (COCH) OF 2013
S.P. NO. 54 (COCH.) OF 2013
[ASSESSMENT YEAR 2011-12]
S.P. NO. 54 (COCH.) OF 2013
[ASSESSMENT YEAR 2011-12]
JULY 26, 2013
Section 246A, read with sections 253 and 272A, of the Income-tax Act, 1961 - Commissioner (Appeals) - Appealable orders [Order under section 272A] - Assessment year 2011-12 - Joint Director of Income-tax levied penalty under section 272A(2)(c) upon assessee - Against penalty order, assessee directly filed appeal before Tribunal - Whether penalty order passed by Joint Commissioner, who was lower in rank than Commissioner (Appeals), was appealable before Commissioner (Appeals) under section 246A(1)(q) - Held, yes - Whether, therefore, assessee had to file appeal before Commissioner (Appeals) instead of directly filing before Tribunal - Held, yes [Para 3] [In favour of revenue]
FACTS
| ■ | The Joint Director of Income-tax levied the penalty under section 272A(2)(c) upon the assessee. Against the penalty order, the assessee filed an appeal before the Tribunal. Subsequently the assessee filed an application before the Tribunal seeking permission to withdraw the impugned appeal on the plea that he had filed the appeal directly before the Tribunal without filing appeal before the Commissioner (Appeals). |
HELD
| ■ | The penalty under section 272A(2)(c) can be levied by an Income-tax authority not lower in rank than a Joint Commissioner or a Joint Director or a Commissioner or a Chief Commissioner. In the instant case, the penalty was levied by the Joint Director. In section 246A(1) an appeal is provided under clause (o) against an order passed by a Deputy Commissioner or Deputy Director imposing penalty under section 272A. In section 272A(3)(a) and (c), the word 'Deputy' is omitted and 'Joint' was incorporated by the Finance (No.2) Act, 1998 with effect from 1-10-1998. Therefore, the penalty under section 272A has to be levied by an officer not lower than a Joint Director or Joint Commissioner. Correspondingly in section 246A(1)(o) the consequential amendment deleting the word 'Deputy' and incorporating the word 'Joint' was not made. A consequential amendment ought to have been made by the legislature. This omission may be unintended. Therefore, it is open to the department to bring the same to the notice of the concerned authority to make necessary amendment, if they are advised so. Even otherwise, an order imposing penalty under section 272A(2)(c) falls under Chapter XXI. Therefore, penalty order passed by the Joint Commissioner, who is lower in rank than Commissioner (Appeals), is appealable before the Commissioner (Appeals) under section 246A(q). Therefore, the assessee had to file appeal before the Commissioner (Appeals) instead of directly filing the appeal before the Tribunal. In view of the above, the appeal was liable to be dismissed. [Para 3] |
S. Vijayaprabha for the Respondent.
ORDER
N.R.S. Ganesan, Judicial Member - The Branch Manager, Punjab National Bank filed the present appeal against the penalty levied by the Joint Director of Income-tax (Intelligence) u/s 272A(2)(c) of the Income-tax Act, 1961. A stay petition is also filed for seeking stay of recovery proceedings.
2. When the stay petition was taken up for hearing today no one appeared on behalf of the Branch Manager, Punjab National Bank. However, a request received from the Branch Manager for withdrawal of the appeal by fax is placed on record by the registry. We have carefully gone through the petition filed by the branch manager for withdrawal of the appeal. The Branch Manager intends to withdraw the appeal since he filed the appeal directly before this Tribunal without filing appeal before the CIT(A). No doubt order passed by the Joint Director is appealable before the CIT(A). Therefore, the appeal filed directly before this Tribunal is not maintainable.
3. It may not be out of place to point out that penalty u/s 272A(2)(c) can be levied by an Income-tax authority in the course of the proceedings not lower in rank than a Joint Commissioner or a Joint Director or a Commissioner or a Chief Commissioner. In the case before us, the penalty was levied by the Joint Director. In section 246A an appeal is provided under clause (o) against an order passed by a Deputy Commissioner or Deputy Director imposing penalty u/s 272A. In section 272A(3)(a) and 272A(3)(c), the word "Deputy" is omitted and "Joint" was incorporated by Finance (No.2) Act, 1998 with effect from 01-10-1998. Therefore, the penalty u/s 272A has to be levied by an officer not lower than a Joint Director or Joint Commissioner of Income-tax. Correspondingly, in section 246A(o), the consequential amendment deleting the word "Deputy" and incorporating the word "Joint" was not made. This Tribunal is of the considered opinion that a consequential amendment ought to have been made by the legislature. This omission may be unintended. Therefore, it is open to the department to bring the same to the notice of the concerned authority to make necessary amendment, if they are advised so. Even otherwise, an order imposing penalty u/s 272A(2)(c) falls under Chapter XXI, therefore, this penalty levied by the Joint Commissioner, who is lower in rank than CIT(A) is appealable before the CIT(A) u/s 246A(q). Therefore, this Tribunal is of the considered opinion that an appeal has to be filed before the CIT(A) instead of directly filing the appeal before this Tribunal. In view of the above, the permission sought by the Branch Manager to withdraw the appeal is granted. Accordingly, the appeal is dismissed as withdrawn. Consequently, the stay petition in S.P. No.54/Coch/2013 is also dismissed.
SKJRegards
Prarthana Jalan
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