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TMI Blog2024 (7) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed by the A.O vide his order passed u/s.270A of the Act dated 01.04.2022 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 to dispose off the appeal afresh. CIT(Appeals) shall in the course of the set-aside proceedings afford a reasonable opportunity of being heard to the assessee appellant. - SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER For the Assessee : S/shri Ajit Korde, Advocate And Ankur Goel, CA For the Revenue : Shri Debashis Lahiri, 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 24.08.2023, 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 01.04.2022 for the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on disallowance inflicted by him in the assessment order on the above issue. (c) Without prejudice to the above, the Ld. AO has erred in law and in facts, in levying penalty u/s.270A without establishing that the explanation furnished by the appellant was not bona fide and Appellant did not disclose all material facts to substantiate explanation offered by it. 8. (a) That on the facts and in the circumstances of the case and in law, the Ld. CIT(A), NFAC erred in not adjudicating the ground raised for initiating penalty proceedings on account of disallowance of OBR expenses. (b) Without prejudice to the above, the Ld. AO has erred in law and in facts, by levying penalty on disallowance inflicted by him in the assessment order on the above issue. (d) Without prejudice to the above, the Ld. AO has erred in law and in facts, in levying penalty u/s 270A without establishing that the explanation furnished by the Appellant was not bona fide and Appellant did not disclose all material facts to substantiate explanation offered by it. 9. (a) That on the facts and in the circumstances on the case and in law, the Ld. CIT(A), NFAC erred in not adjudicating the ground raised for initiating pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. (b) Without prejudice to the above, the Ld. AO has erred in law and in facts, by levying penalty on disallowance inflicted by him in the assessment order on the above issue. (g) Without prejudice to the above, the Ld. AO has erred in law and in facts, in levying penalty u/s 270A without establishing that the explanation furnished by the Appellant was not bona fide and Appellant did not disclose all material facts to substantiate explanation offered by it. 13. (a) That on the facts and in the circumstances of the case and in law. 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. (b) Without prejudice to the above, the Ld. AO has erred in law and in facts, by levying penalty on disallowance inflicted by him in the assessment order on the above issue. (h) Without prejudice to the above. the Ld. AO has erred in law and in facts. in levying penalty u/s 270A without establishing that the explanation furnished by the Appellant was not bona fide and Appellant did not disclose all material facts to substantiate explanation offered by it. 14. (a) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . AO has erred in law and in facts, by levying penalty on disallowance inflicted by him in the assessment order on the above issue. (c) Without prejudice to the above. the Ld. AO has erred in law and in facts, in levying penalty u/s.270A without establishing that the explanation furnished by the Appellant was not bona fide and Appellant did not disclose all material facts to substantiate explanation offered by it. 18. (a) That the appellant craves leave to add and/or alter, amend, modify or rescind the grounds hereinabove before or at the hearing of this appeal. (b) The Appellant submits that each of the above grounds are mutually exclusive and without prejudice to one another. 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.2017-18 on 31.10.2017, disclosing a total income of Rs. 4288,49,05,749/-. Subsequently, the case of the assessee company was selected for scrutiny assessment u/s.143(2) of the Act. 3. Thereafter, assessment was framed by the A.O vide his order passed u/s.143(3) of the Act dated 17.03.2019 wherein the income of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by the Ld. AR that even otherwise the A.O had wrongly imposed penalty u/s.270A of the Act for the reason that the same was not initiated by him while framing the assessment vide his order passed u/s.143(3) dated 17.03.2019. Our attention was drawn by the Ld. AR to the body of the assessment order which revealed that the A.O had initiated penalty u/s. 271(1)(c) of the Act. 8. Per contra, the Ld. Departmental Representative (for short DR ) relied on the orders of the lower authorities. 9. We have given a thoughtful consideration and find substance in the claim of the Ld. AR that the CIT(Appeals) had on the basis of his perverse observations dismissed the appeal of the assessee company and held the same as infructuous. As is discernible from the order of the CIT(Appeals), the appeal filed by the assessee was dismissed by him 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment under sub-section (3) of section 115WE or section 115WF, where the assessee, being an employer objects to the value of fringe benefits assessed; (ab) an order of assessment or reassessment under section 115WG; (b) an order of assessment, reassessment or recomputation under section 147 except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA or section 150; (ba) an order of assessment or reassessment under section 153A except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA; (bb) an order 5[made] under sub-section (3) of section 92CD; (c) an order made under section 154 or section 155 having 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 sub- section (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 sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een redesignated as Joint Director, the references in this sub-section for Deputy Commissioner and Deputy Director shall be substituted by Joint Commissioner and Joint Director respectively. (emphasis supplied by us) 11. We, thus, on the basis of the aforesaid clear mandate of law, are of the considered view that as an order imposing penalty u/s. 270A of the Act, which in turn finds place in Chapter XXI of the Act, is in clear and unequivocal terms an order appealable before the CIT(Appeals), 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) 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 01.04.2022 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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