2022 (10) TMI 790

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....al 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 AO u/s 285BA(5) commencing from the due date of filing of AIR information which was 31.08.2015, and further delay of 364 days till actual filing of AIR information by assessee for financial year 2014- 15(assessment year 2015-16), on 02/12/2016. 2. The assessee, being aggrieved by penalty order dated 23.03.2017 passed by Assessing Officer levying penalty of Rs. 191400 u/s 271FA against the assessee, has filed first appeal with Tribunal on 4th April, 2018, which itself is a belated appeal. The assessee has directly filed first appeal with Tribunal against penalty order u/s 271FA dated 23.03.2017 passed by learned DIT (Intelligence & Criminal Investigation), Kanpur. When this appeal was called for hearing before the Division Bench, on 17th October, 2022, none appeared on behalf of the assessee although adjournment application was filed. The Divisi....

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....ngs 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 penalty of Rs.4,74,500/- u/s 271FA of the 1961 Act for non-compliance of provisions of Section 285BA(1) of the 1961 Act. We are of the considered view that first appeal against 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 ....

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....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 notice that now the CBDT has clarified in F.No.279/M-31/2010-SO(ITJ) on this point. He also filed on record a copy of page No. 5 & 6 of the said Notification. We find that in the above Notification, the CBDT has clarified that u/s 246A(1)(q), of the income-tax Act, the CIT(Appeals) has powers to dispose of any penalty levied u/s 271FA and that there is no legal bar on CIT(Appeals) passing an appeal order against penalty order passed by the DIT (CIB), who is equivalent to the rank of CIT(Appeals). It has also been mentioned in the above Circular that whether CIT(Appeals) and DIT(CIB) are equivalent in rank or not is an administrative issue and it has nothing to do with the fact that the CIT(Appeals) can hear an appeal filed against an order passed u/s 271FA of the Income Tax Act by Director of Income Tax(CIB). Furth....

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....ection 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 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, may file first appeal before the Learned CIT(A) against the penalty order dated 17.12.2009 passed by A.O. under section 271FA of the I.T. Act, 1961 immediately on receipt/service of this appellate order, and if that be so, we direct Learned CIT(A) to condone the delay in filing appeal by the appellant. We order....