2018 (2) TMI 426 - AT - Income Tax

Penalty u/s. 271FA - penalty order as appealable order before this forum - Held that - 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. Since a penalty order u/s. 271FA is not directly appealable order before this forum, the appeal preferred by assessee is liable to be dismissed. - Decided against assessee.

Summary

Issues:
1. Maintainability of appeal under Section 253 of the Income Tax Act.
2. Validity of the order under Section 271FA of the Act.

Issue 1: Maintainability of appeal under Section 253 of the Income Tax Act:

The appeal was against a penalty under Section 271FA of the Income Tax Act. The Appellate Tribunal questioned the maintainability of the appeal before them as Section 253 of the Act does not explicitly list the order of penalty under 271FA as appealable before the ITAT. The assessee argued that the order was appealable based on various legal provisions. The assessee contended that since the penalty under 271FA was discretionary, an appeal should lie against it. The Tribunal, however, emphasized that the right of appeal must be statutorily provided either to the CIT(A) or the ITAT. The Tribunal advised the assessee to prefer an appeal before the CIT(A) as directed by the DIT(I&CI) after levying the penalty. The Tribunal concluded that since a penalty order under 271FA is not directly appealable before the ITAT, the appeal was liable to be dismissed.

Issue 2: Validity of the order under Section 271FA of the Act:

The Tribunal delved into the validity of the penalty order under Section 271FA. The assessee, a cooperative society, argued that it was not covered by Section 285BA of the Act, which mandates certain entities to furnish information. The assessee highlighted previous judgments supporting its claim under Section 80P(2)(a)(i) of the Act. The Tribunal noted discrepancies in the penalty order, including incorrect references and lack of mention of the assessee's responses. It raised concerns about the application of mind by the DIT(I&CI) before levying the penalty. The Tribunal observed that the penalty seemed to be imposed for non-filing of a statement, despite the assessee having filed a return. While acknowledging potential merit in the assessee's contentions, the Tribunal reiterated its inability to entertain the appeal due to the lack of direct appealability of a penalty under 271FA before the ITAT, ultimately dismissing the appeal as infructuous.

In summary, the Appellate Tribunal, in this case, addressed the issues of the maintainability of the appeal under Section 253 of the Income Tax Act and the validity of the penalty order under Section 271FA. Despite recognizing potential merit in the assessee's arguments, the Tribunal dismissed the appeal as it lacked direct appealability of the penalty under 271FA before the ITAT. The Tribunal emphasized the importance of statutory provisions for the right of appeal and advised the assessee to pursue the appeal through the appropriate channels as per the Act.