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TMI Blog2023 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the CIT(A), therefore, a view to the contrary taken by the CIT(Appeals) in the present case before us cannot be sustained and is liable to be vacated. Also, on a careful perusal of the order of the CIT(Appeals), it transpires that he had while concluding as hereinabove wrongly referred to provisions of Section 246(1) which we may herein observe are no more applicable after 01.06.2000. We restore the matter to the file of the CIT(Appeals) with a direction to re-adjudicate the same afresh - Assessee appeal allowed for statistical purposes. - Shri Ravish Sood, Judicial Member And Shri Arun Khodpia, Accountant Member For the Assessee : S/shri Ajit Korde, Advocate And Ankit Agrawal, CA For the Revenue : Shri S.K Meena, CIT-DR ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 23.12.2022, which in turn arises from the order passed by the A.O under Sec. 270A of the Income-tax Act, 1961 (in short the Act ) dated 31.03.2020 for the assessment year 2018-19. The assessee has assailed the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiating penalty proceedings on account of disallowance of expenditure incurred on power and fuel on ad-hoc basis. 8. Without prejudice to the above, the Ld. CIT(A), NFAC erred in not adjudicating the ground raised for initiating penalty proceedings on account of disallowance of expenditure on environment and tree plantations. 9. Without prejudice to the above, the Ld. CIT(A), NFAC erred not adjudicating the ground raised for initiating penalty proceedings on account of disallowance of expenditure on coal transportation through ex-servicemen companies on adhoc basis. 10. Without prejudice to the above, the Ld. CIT(A), NFAC erred in not adjudicating the ground raised for initiating penalty proceedings on account of disallowance of depreciation on railway siding leased to M/s Aryan Coal Beneficiation Pvt. Ltd, M/s Gujarat State Electricity Board and M/s Spectrum Coal Power Limited. 11. Without prejudice to the above, the Ld. CIT(A), NFAC erred in not adjudicating the ground raised for initiating penalty proceedings on account of disallowance of compensation paid to employees based on actuarial valuation. 12. Without prejudice to the above, the Ld. CIT(A), NFAC err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or actions as provided in section 270A(9) in the penalty show-cause notice rendering penalty order passed by him bad-in-law, which is liable to be quashed as held by the Hon'ble Pune Tribunal in the case of Kishor Digambar Patil V/s. Income Tax Officer (ITA No. 54 and 55/PUN/2023). 2. Succinctly stated, the assessee company which is involved in the activities relating to development of mines and extraction of coal from various mines had filed its return of income for A.Y.2018-19 on 06.10.2018, disclosing a total income of Rs. 4388.10 crore (approx.). Thereafter, the assessee company revised its return of income on 30.03.2019 disclosing an income of Rs. 4657.57 crore (approx.). Case of the assessee was subsequently selected for scrutiny assessment u/s.143(2) of the Act. 3. Original assessment was framed by the A.O vide his order passed u/s. 143(3) of the Act dated 02.03.2020 wherein its income was determined at Rs. 6047.74 crore (approx.). The A.O while culminating the assessment initiated penalty proceedings u/s. 270A of the Act. Subsequently, the A.O issued Show Cause Notice(s) (SCNs) dated 04.02.2020 and 07.02.2020, therein calling upon the assessee company to put fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for the reason that he held a conviction that the same did not fall within the realm of the orders which were appealable before him. For the sake of clarity, the observation of the CIT(Appeals) is culled out as under: 5. Appellate order: The legal mandate available to The Commissioner of Income Tax (Appeal) is clearly mentioned under Section 246(1) of IT Act. Section 246(1)(1) mention the types of penalties which are called for adjudication by Commissioner of Income Tax (Appeal). The order imposing the penalties under- (i) Section 221, or (ii) Section 271, Section 271A, Section 271B[section 272A, Section 272AA or Section 272BB], (iii) Section 272,Section 272B or Section 273 as they stood immediately before the 1st day of April 1989, in respect of any assessment for the assessment year commencing on the 1st day of April 1988 or any earlier assessment year. Thus Section 246(1)(I) demarcates the power adjudication on penalties. The current appeal is on the order of penalty levied under section 270A which was specifically excluded from the jurisdiction of Commissioner of Income Tax of Appeals. Hence, the appeal filed is infructuous and cannot be adjudicated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections except an order referred to in subsection (12) of section 144BA; (d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made under clause (b) of sub-section (1) or under sub-section (2) or sub-section (3) or sub-section (5) of section 185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992; (h) an order cancelling the registration of a firm under sub-section (1) or under subsection (2) of section 186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992 or any earlier assessment year; (ha) an order made under section 201; (hb) an order made under sub-section (6A) of section 206C; (i) an order made under section 237; (j) an order imposing a penalty under (A) section 221; or (B) section 271, section 271A, section 271AAA, section 271AAB, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that he had while concluding as hereinabove wrongly referred to provisions of Section 246(1) of the Act, which we may herein observe are no more applicable after 01.06.2000. 12. Be that as it may, we are of the considered view that as the penalty imposed by the A.O vide his order passed u/s.270A of the Act dated 02.03.2020 clearly falls within the realm of the orders appealable before the CIT(Appeals) u/s 246A of the Act, therefore, the dismissal of the appeal of the present assessee company by taking a view to the contrary by the CIT(Appeals) cannot be sustained. We, thus, in terms of our aforesaid observations set-aside the order of the CIT(Appeals) and restore the matter to his file with a direction to him dispose off the appeal afresh. Needless to say, the CIT(Appeals) shall in the course of the set-aside proceedings afford a reasonable opportunity of being heard to the assessee appellant. 13. As we have restored the matter to the file of the CIT(Appeals) with a direction to re-adjudicate the same afresh, therefore, we refrain from dealing with the other contentions raised by the assessee appellant as regards the sustainability of the penalty imposed by the A.O u/s. 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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