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2022 (7) TMI 432 - AT - Income TaxMaintainability of first appeal before the tribunal or CIT(A) - Penalty u/s 271FA read with Section 274 - non-compliance of provisions of Section 285BA(1) - HELD THAT:- We are of the considered view that first appeal against penalty order passed by A.O. levying penalty u/s 271FA would lie before CIT(A), and not before the tribunal. Thus, the assessee erred in filing this appeal directly before the tribunal, and hence this appeal is non-est and not maintainable before the tribunal. In this connection, reference is drawn to provisions of Section 246A(1)(q) which provides that an appeal against order imposing penalty under Chapter-XXI would lie with CIT(A). Section 271FA of the 1961 Act falls under Chapter-XXI of the 1961 Act. It is also relevant to reproduce the appellate order passed by ITAT, Varanasi Circuit Bench, Varanasi in the case of Sub-Registrar, Gola Bazar, Dist. Gorakhpur etc., v. DIT (I & CI), DTRTI, Lucknow, [2022 (3) TMI 1394 - ITAT VARANASI], whereby the Division Bench had taken a view that first appeal against penalty order passed by A.O. levying penalty under section 271FA of the 1961 Act would lie with Learned CIT(A), keeping in view provisions of Section 246A(1)(q) of the 1961 Act. CIT(A) has dismissed all the appeals taking a view that first appeal against penalty order passed by A.O. under section 271FA levying penalty for non-compliances of Section 285BA(1) of the 1961 Act, would lie directly to ITAT, which view of the Learned CIT(A) was held to be an erroneous view by the tribunal vide common order dated 24.03.2022. There could be a bonafide belief on the part of the appellant to file an appeal directly with the tribunal against penalty order passed by A.O. u/s 271FA of the 1961 Act for non compliance of provisions of Section 285BA of the 1961 Act, but however the fact of the matter is that the first appeal against the penalty order passed by AO u/s 2711FA shall lie with ld. CIT(A) and not with tribunal. Thus, we are inclined to dismiss this appeal filed by the appellant before the tribunal as a non-est appeal being not maintainable , with a further direction that appellant, if so advised, may file first appeal before the Learned CIT(A) against the penalty order passed by A.O. under section 271FA of the I.T. Act, 1961 immediately on receipt/service of this appellate order, and if that be so, we direct Learned CIT(A) to condone the delay in filing appeal by the appellant.
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