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TMI Blog2018 (2) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein in Column No. 6, it is specifically noted that assessee may present the appeal to the CIT(A) within thirty days of the receipt of the said notice. 2. Since the provisions of Section 253 of the Act does not specify the order of penalty u/s. 271FA as an appealable order before the ITAT, the assessee was asked to show cause why the appeal should not be dismissed as not maintainable. In reply, the assessee has submitted the following in support of the contentions that appeal is maintainable: "8. ADMISSIBILITY OF APPEAL BY THE HON'BLE ITAT: 8.1 The Hon'ble ITAT issued a DEFICIENCY MEMO dt. 20-07-2017 directing the assessee-appellant to explain as to whether such order under Sec. 271FA is an appealable order before the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring which took place on 23-08-2017 And for the above submissions, it is requested that the above appeal may kindly be admitted for adjudication of the issue involved therein. 9. VALIDITY OF ORDER under Sec. 271FA of the Act: 9.1 As per Rule 114E of LT. Rules, the information referred to in AIR read with Sec. 285BA of the Act, only a BANKING COMPANY AND COOP. BANK are bound to furnish the above information whereas the assessee's case, being a COOPERATIVE SOCIETY, is not covered by Sec. 285BA of the Act. It is submitted that the assessee came into existence originally w.e.f. 31- 05-1997 as a Mutually Aided Cooperative Credit Society having been registered under Sec. 5 of Andhra Pradesh Mutually Aided Coop. Societies Act., 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court. 9.4 However, the fact remains in the instant case is that the assessee's Status cannot be regarded as a COOP. Bank as per the decisions of the Hon'ble ITAT in assessee's same case for the A.Y. 2012-13 and even as per the latest order of the Hon'ble Supreme Court for the A.Y. 2009-10 as envisaged above. Thus the provisions contained in Sec. 285BA read with Rule 114E of the Act are not applicable to the assessee's case and thus the LEVY UNDER SEC. 271FA may be VOID ABINITIO. Hence, it is prayed that the impugned PENALTY UNDER SEC. 271FA may be ordered to be SET ASIDE treating the same as NON EST. IN LAW". 3. Assessee's Counsel, Shri D.L. Narasimha Rao, appeared and explained that appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provided either to the CIT(A) or to the ITAT as the case may be. 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. 6. However, before concluding it is not out of place to state that the Paper Book furnished before this forum indicates that assessee did in fact file statement u/s. 285BA(1) before the Income Tax authorities so the penalty levied for not filing u/s 271FA does not arise. Vide a letter dt.27-10-2016, the ITO, HQrs., in the Office of DIT(I&CI) informed the assessee that in about 120 number of transactions, PAN was not mentioned. It was further informed that "it may be noted that furnishing of incomplete and incorrect information is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed file a return/statement in time and if the deficiencies are not rectified, within the time allowed it has to be treated as 'invalid return' under section 285BA(4). No such action seems to have been taken by the Income Tax authority before levy of penalty u/s. 271FA. Not only taking the status of assessee but also the dates involved along with the fact that assessee did file a return as per the provisions indicates that there is no application of mind by the DIT(I&CI) before levy of penalty. There may be merit in assessee's contentions that penalty is not warranted on the facts of the case. However, as this forum cannot entertain the appeal itself, without considering the merits of the contentions, appeal memo is dismissed as infructuous. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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