TMI Blog2022 (10) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : None (Adjournment Application) For the Respondent : Shri Amit Nigam, D. R. ORDER PER RAMIT KOCHAR, A.M. These two appeals are filed by two different assessee s challenging penalty levied u/s 271FA of the Income-tax Act,1961 for default in filing of the AIR information within the time stipulated u/s 285BA(1) of the 1961 Act. First we, shall take up appeal of the assessee for assessment year 2015- 16(financial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is drawn to the provision of Section 246A(1)(q) of the Act , wherein appeals arising out of the penalty orders passed under Chapter XXI of the 1961 Act shall lie with ld. CIT(A). Thus in nut shell, the correct authority to adjudicate first appeal arising out of penalty order u/s 271FA , is learned CIT(A). Reference is also drawn to following orders passed by the Varanasi Division Bench (in which both of us were part of the DB who pronounced the order)wherein a similar view has been taken that the correct authority to adjudicate first appeal arising from penalty order passed by AO u/s 271FA, is learned CIT(A) and not the tribunal. 1. I.T.A. No.46/Vns/2020 in the case of The Sub-Registrar Gandhi Road, Saidpur, Ghazipur, Distt.Ghazipur, UttarPradesh v. DIT(I CI), Lucknow,order dated 07.07.2022 (Varanasi Circuit Bench) The findings of the Tribunal in ITA No. 46/Vns/2020 , are as under: 6. We have considered rival submissions and perused the material on record. We have observed that the appellant has filed an appeal with tribunal directly against penalty order passed by A.O. under section 271FA of the 1961 Act, for the ay: 2018-19 (F.Y. 2017-18), wherein the AO levied pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afraid that this finding 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, in ITA no. 1184, 1185, 1186 1189/Chd./2010, vide common order dated 22.02.2011, wherein tribunal held as under : 5. We have heard the parties and considered the facts and materials on record. First of all, we have to decide whether the appellant can file an appeal before the Tribunal directly without filing of appeal before the CIT(Appeals). In this connection, learned counsel for the assessee brought to our n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the principle of natural justice and in accordance with law. The ld. CIT(A) is directed to pass reasoned and speaking order on all the issues raised by the assessee in its appeal filed with ld. CIT(A), while adjudicating denovo the appeal of the assessee. The evidences /explanations submitted by the assessee shall be admitted by ld. CIT(A) in accordance with law and be adjudicated on merits in accordance with law. Thus, in nut-shell appeal filed by the assessee in ITA no.75/Vns/2019 for ay: 2011-12 is allowed for statistical purposes. We order accordingly. 6.1. We have observed that in the above cases which were decided by tribunal vide common order dated 24.03.2022, Learned 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 noncompliances 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. 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 sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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