2015 (10) TMI 309 - AT - Income Tax

Maintainability of appeal against the order levying penalty under section 274 read with section 271FA of the Act - Penalty for failure to furnish annual information return - delay of 24 days in filing the appeal - Held that - Nowhere in section 253 mentions the order passed by the Director of Income-tax (Intelligence) or any other officer of the Income-tax Department levying penalty under section 271FA is appealable before this Tribunal. This Tribunal being a quasi judicial authority established under the provisions of the Income-tax Act cannot travel beyond the provisions of the Act. Therefore, unless and until an appeal is specifically provided in section 253 of the Act against the order levying penalty under section 271FA, this Tribunal is of the considered opinion that the present appeal is not maintainable before this Tribunal.See SRO, Meppayur-Kozhikode Versus Director of Income-tax (Intelligence), Cochi 2014 (1) TMI 102 - ITAT COCHIN After examining the provisions of the Act, this Tribunal found that no appeal is provided under the Act against the penalty levied under section 271FA of the Act. Hence, the appeal filed by the assessee before this Tribunal against the order levying penalty under section 271FA is not maintainable. - Decided against assessee.

Summary

Issues:
1. Maintainability of appeal against penalty under section 274 read with section 271FA of the Income Tax Act.

Detailed Analysis:
1. The appeal was against the penalty levied under section 274 read with section 271FA of the Income Tax Act. The representative for the assessee argued that the delay in filing the appeal was beyond the control of the assessee and that due to reasonable cause, the AIR information could not be furnished as required under section 285BA(1) of the Act. However, the Tribunal found that no appeal is provided under the Act against the penalty levied under section 271FA. The Tribunal referred to a previous order and highlighted that section 253 of the Act does not mention the order passed by the Director of Income-tax (Intelligence) levying penalty under section 271FA as appealable before the Tribunal. The Tribunal emphasized that it cannot go beyond the provisions of the Act and concluded that the appeal filed by the assessee was not maintainable.

2. The Tribunal also addressed the direction given by the Director of Income-tax (Intelligence) in the demand notice, stating that the consent or direction of the Director does not confer jurisdiction on the Tribunal unless provided for in the Income Tax Act by Parliament. Additionally, it was noted that while an appeal under section 246A(q) of the Act is available for orders imposing penalty under Chapter XXI, the Tribunal cannot entertain the appeal based on the effectiveness or efficacy of the remedy. The Tribunal highlighted an omission in the amendment of section 253 concerning section 271FA and suggested that the Department could bring this to the notice of the concerned authority for consequential amendment if the omission was unintended.

3. Ultimately, the Tribunal dismissed the appeal of the assessee, emphasizing that it was not maintainable before the Tribunal. However, it clarified that the assessee could challenge the penalty order before the appropriate forum in accordance with the law. The Tribunal's decision was based on the lack of specific provision for appeal against penalty under section 271FA in the Act, despite acknowledging the potential unintended omission in the amendment related to this section.

This detailed analysis of the judgment highlights the key arguments, legal provisions, and the Tribunal's reasoning behind declaring the appeal not maintainable in the given case.