TMI Blog2018 (2) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... inion, 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. - I.T.A. No. 687/HYD/2017 - - - Dated:- 10-11-2017 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For The Assessee : Shri D.L. Narasimha Rao, AR For The Revenue : Shri Pathlavath Peerya, CIT-DR ORDER PER B. RAMAKOTAIAH, A.M. : This is an appeal by assessee against the penalty of ₹ 55,700/- levied u/s. 271FA of the Income Tax Act [Act] by the DIT(I CI), Hyderabad dt. 10-03-2017. Assessee pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be filed with an authority who is parallel to the Hon'ble Director, such clarification was not given by the Directorate; ( 3) However, taking notice of the fact that penalty under Sec. 271FA was also referred to in Sec. 273B of the Act, it is felt by the assessee-appellant that such levy is not MANADOTRY as in the case of levy of Int. under Sec. 234-A 234B etc., and that such levy is only DISCREATIONARY and hence there lies an appeal against the order under Sec. 271FA as per the provisions of Law. ( 4) That as per the provisions contained in clause 6 appended to Sub Sec. 1 of Sec. 253 of the Act, an order passed by the Principal CIT/CIT under Sec. 271 of the Act is also construed to be an order which could be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09); before the Hon'ble ITAT, Hyderabad (for the A.Ys. 2010-11,2011-12 and 2013-14 and 2014- 15) yet the Hon'ble ITAT, B-Bench, Hyderabad allowed the assessee's claim under Sec. 80(2)(a)(i) of the Act for the A.Y. 2012-13 - vide order in ITA. No. MA No. 31/Hyd/2016 in ITA No. 1295/Hyd/2015 dt 04-03-2016 read with order dt 15-07-2016 identifying its status as COOP. SOCIETY not falling within the scope of BANKING REGULATION ACT referred to in Sec. 80P (4)of the Act; 9.3 Even the Hon'ble Supreme Court held in its latest order in Civil Appeal No. 10245/2017, dt 08-082017 to the effect that the assessee is not a Cooperative Bank Vide para 24 there of. However, the Hon'ble S.C. denied such claim under Sec. 80P(2)(a)(i) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5.1. In the course of arguments, assessee s counsel was advised to prefer an appeal before the Ld.CIT(A) as directed by the DIT(I CI) after levying the penalty in the demand notice. If the order has been passed by the Ld.CIT(A), this forum can entertain the appeal on such an order. Otherwise, assessee can choose to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no mention of these replies given by assessee in the penalty order passed by the DIT. Not only that the penalty order refers to a show cause letter dt. 29-01-2016, whereas show cause issued by the ITO, HQrs., is dt. 27-10-2016. The first sentence of the penalty order indicates that assessee is a person covered as a Registrar or Sub-Registrar appointed u/s. 6 of the Registration Act, 1908 . However, as seen from the facts, assessee is not a Registrar or Sub-Registrar appointed under sub-clause (6) of the Registration Act, but claiming status of a banking company, which is also yet to be adjudicated finally, as stated in reply before this forum. Even calculation of 557 days for levy of penalty at ₹ 100/- is not verifiable, given the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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