TMI Blog2012 (9) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner Appeals. As against orders passed under Section 271 and 272A (also under Chapter XXI) before the ITAT, this court cannot on analogy hold that because the said orders passed by an officer of the rank of Commissioner of Income Tax are appealable before the ITAT under Section 253 of the 1961 Act, an order under Section 271 FA also passed by an officer of the rank of Commissioner Income Tax should also be appealable before the ITAT - it is an admitted fact that in the course of the demand notice under Section 156 following the order of penalty under Section 271 FA of the 1961 Act, the assessee was informed that the said order was appealable before the jurisdictional Commissioner (Appeals) - in the instant case Commissioner Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an appeal provides for rectification of orders passed by lower authorities by their higher authority, no statutory appeal from an order of Director Income Tax (a person equivalent to a Commissioner of Income Tax) to Commissioner of Income Tax holding an equivalent rank under the 1961 Act is conceivable. He submits that an appeal against an order of Director Income Tax (Commissioner) passed under Section 271 FA before an equivalent officer i.e. Commissioner Appeals is impliedly not visualised under Section 246A (1) (q) of the 1961 Act and a literal reading of the provision would be an erroneous interpretation. A reference to Section 253 of the 1961 Act has been made and it is submitted that Section 253 (1) (c) of the 1961 Act provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om orders passed by Sub Divisional Officers who are members of the Indian Administrative Services - a higher services. The submission is that in the instant case the Commissioner Appeals is not even subordinate to the Director Income Tax (Commissioner) in the pecking order and hence the submissions of the petitioner's counsel in this case are a non sequitur. It is submitted that in the case at hand a reference be had to the plain language of Section 246A clause (q) of the 1961 Act which provides that all orders of penalty falling under Chapter XXI are appealable to Commissioner Appeals. It is submitted that an order of penalty under Section 271 FA is an order under Chapter XXI of the 1961 Act and consequently appealable to the jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely because writ petitions has been entertained directly against orders under Section 271 FA of the 1961 by this court, it is not a ratio determined by this court that appeals against orders passed under Section 271 FA of the 1961 Act are not maintainable. Counsel submits that entertaining of writs even while an alternative statutory remedy is available is a matter of discretion of this court in a given case and nothing turns on it to read a universal rule therein. Counsel submits that in any event the aforesaid argument is bad for contrariety in a much while on the one hand it is contended that an order of penalty under Section 271FA of the 1961 Act is appealable not under Section 246A (1) (q) to the Commissioner Appeals but under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the provision for filing appeals against orders passed under Section 271 and 272A (also under Chapter XXI) of the 1961 Act before the ITAT, this court cannot on analogy hold that because the said orders passed by an officer of the rank of Commissioner of Income Tax are appealable before the ITAT under Section 253 of the 1961 Act, an order under Section 271 FA of the 1961 Act also passed by an officer of the rank of Commissioner Income Tax should also be appealable before the ITAT. In my considered view even though orders of penalty under Section 271 and 272A of the 1961 Act fall under Chapter XXI, appeals therefrom stand excluded before the Commissioner Appeals under the general provisions of Section 246A (1) (q) by virtue of a speci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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