9911796707
TMI Blog2022 (10) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2014-15). The Assessing Officer issued penalty notice u/s 271FA read with section 274,dated 19/01/2017 to the assessee as there was delay by assessee in filing of AIR information for the financial year 2014-15 , which was required to be filed by assessee latest by 31st August, 2015. The AO also issued notice dated 29.10.2015 u/s 285BA(5) of the 1961 Act.The assessee filed AIR information for financial year 2014-15 , on 02/12/2016 and hence there was a delay of 458 days by assessee in filing of AIR information for financial year 2014-15, which led to levy of penalty aggregating to Rs.1,91,400/- by the Assessing Officer, which comprises of 94 days of delay leading upto 03rd December, 2015 which was the time given vide notice issued by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this tribunal to adjudicate this appeal. Again none appeared on behalf of the assessee before Division Bench when this appeal was called for hearing on 18.10.2022, although adjournment application is filed on behalf of the assessee. The adjournment application was rejected by Division Bench , and the Division Bench proceeded to adjudicate the appeal after hearing learned D.R. 3. At the outset, the ld. DR submitted that this tribunal does not have jurisdiction to hear this appeal as correct forum to file first appeal against penalty order u/s 271FA is with ld. CIT(A), keeping in view provisions of Section 246A(1)(q). This appeal is emanating from penalty order passed u/s 271FA of the Act , which has been directly filed with the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst penalty order passed by A.O. levying penalty under section 271FA of the 1961 Act would lie before Learned 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) of the 1961 Act, which provides that an appeal against order imposing penalty under Chapter-XXI would lie with Learned CIT(A). Section 271FA of the 1961 Act falls under Chapter- XXI of the 1961 Act. In this connection, 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. Gora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of ld. CIT(A) is erroneous in the teeth of provisions of Section 246A(1)(q) of the 1961 Act, and in fact ld. CIT(A) is the appropriate authority designated for adjudicating first appeal against an penalty order passed by AO u/s 271FA of the 1961 Act. The provisions of Section 246A(1)(q) of 1961 Act is a residuary provisions which stipulate that first appeal against an order imposing penalty under Chapter XXI shall lie with CIT(A). Undoubtedly, provisions of Section 271FA falls under Chapter XXI of the 1961 Act. Reference is also drawn to Co-ordinate Benches decision of tribunal in the following case, where the similar view was taken, as under : a. Chandigarh-tribunal order in Sub-Registrar , Fategarh Sahib, v. DIT (CIB), Chandigarh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T, in our considered opinion, the appellant should have filed an appeal before the CIT(Appeals) before filing an appeal directly before this Tribunal. In view of this position, we are dismissing all the four appeals filed by the appellant." b. Chennai-tribunal decision in the case of Sub- Registrar, Salem v. The DIT(CIB)(I/C), Chennai in I.T. Act no. 2009, 2013, 2015 and 2016/Mds/2010, vide common order dated 02.06.2011, wherein the tribunal has taken a similar view that an appeal against penalty order passed u/s 271FA shall lie with ld.CIT(A) keeping in view provision of Section 246A(1)(q) of the 1961 Act. Thus, under these circumstances as narrated above, we are setting aside appellate order passed by ld. CIT(A) as not sustainable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned CIT(A) was held to be an erroneous view by the tribunal vide common order dated 24.03.2022. Thus, 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. under section 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. 6.2 Thus, keeping in view our aforesaid discussions, 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, m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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