2012 (9) TMI 652

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....under Chapter 21 of Income Tax Act, 1961 (herein after the Rs. 1961 Act') was maintainable before the Commissioner Appeals with reference to 246A (1) (q) of the 1961 Act. The Tribunal so holding has set aside the order of Commissioner Appeals-III Jaipur finding to the contrary and remanded the matter to Commissioner Appeals to be heard on merits. Learned counsel for the petitioners submits the order of the ITAT is liable to be set aside on the ground that the Tribunal erred in holding that an appeal against an order passed under Section 271 FA falling under Chapter XXI of the 1961 Act was maintainable before the Commissioner Appeals. It is submitted that the order of penalty under Section 271 FA is an order passed by the Director Income Ta....

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....y to his earlier submissions submits that even otherwise this court has entertained writ petitions directly against orders under Section 271 FA of the 1961 Act, from which an inference ought to be drawn that no appeal at all is available under the 1961 Act from an order of penalty passed under Section 271 FA of the 1961 Act. Per contra, counsel for respondents would submit that appeals are creatures of statute and are to be availed only as provided. It is submitted that the appellate authority under a statute has to be determined by a plain and literal reading of the statute and the status of the appellate authority qua the authority which has passed the order is not germane. Counsel has submitted that the Revenue Appellate Authority under....

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....ppeals against orders passed under Section 271 and 272A of the 1961 Act and not against the orders passed under Section 271 FA of the Income tax Act. Counsel submits that the orders passed under Section 271 and 272A of the 1961 Act even while falling under Chapter 21 would not be appealable under Section 246A (1) (q) of the 1961 Act for the reason of a specific provision for appeal in respect thereof having been made to the exclusion of the otherwise general provision under Section 246A (1) (q) of the 1961 Act. It is submitted that in the absence of specific provision for appeal under Section 253 of the 1961 Act - as in the case of orders of penalty under Section 271 and 272A, an appeal against orders of penalty under Chapter XXI would be g....

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....ainable. Heard learned counsel for the parties, and perused the material available on record of writ petition. The question before this court is whether an order passed under Section 271 FA of the 1961 Act by the Director Income Tax, who holds the rank of a Commissioner in the Income Tax Department is appealable under Section 246A (1) (q) of the 1961 Act to the Commissioner Appeals. Section 246A (1) (q) of the 1961 Act provides for appeals before the Commissioner Appeals against an order of penalty passed under Chapter 21 of the 1961 Act. Section 271 FA admittedly falls within Chapter 21 of the 1961 Act. To my mind therefore on a plain reading of the said provision an appeal against an order passed by an officer of the rank of Commissione....