Sub-Registrar, Suratgarh, District Sri Ganganagar v. Director Of Income Tax (Cib), Rajasthan

S.B.C.W.P. No.6942/2011 Order dt: 29/05/2013 1/4 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JODHPUR ORDER S.B. Civil Writ Petition No.6942/2011 Sub-Registrar, Suratgarh, District Sri Ganganagar Vs. Director of Income Tax (CIB), Rajasthan Date of Order th ::: 29 May, 2013 PRESENT HON'BLE Dr. JUSTICE VINEET KOTHARI Mr. Sundeep Bhandawat, for the Revenue Department.Mr. Varun Gupta, for the respondent. -- BY THE COURT: 1.The petitioner, Sub-Registrar, Suratgarh, of the RevenueDepartment has preferred this writ petition against Income-taxDepartment being aggrieved by imposition of penalty under Section271 FA of the Income-tax Act, 1961 vide order Annex.3 dated07.05.2010 amounting to Rs.35,300/- @ Rs.100/- per day on accountof default and delay in furnishing the returns which were delayed by353 days under Section 285 BA (i) of the Income-tax Act, 1961 for thefinancial year 2006-07 giving details of the registries of conveyance-deeds etc. registered by him during such period which are sorequired to be submitted by him to the Income-tax Department.Before approaching this Court, the petitioner, Sub-Registrar,Suratgarh even filed an appeal before the Income-Tax Appellate S.B.C.W.P. No.6942/2011 2/4 Tribunal against the said penalty order, which, however, came to bedismissed as not maintainable vide order dated 19.08.2009. 2.Learned counsel for the respondent, Income-taxDepartment, Mr. Varun Gupta, submitted that in view of coordinatebench's decision of this Court in the case of Director of Income-tax(CIB) Vs. Ravi Vijay reported in (2012) 6 Tax Corp (DT) 52616(Rajasthan) that against the penalty order under Section 271 FApassed by the Commissioner of Income-tax (CIB), Rajasthan, Jaipur,an appeal would lie to the CIT (Appeals), as the first appeal underSection 246A (1) (q) of the Act of 1961 and therefore the ITAT hadrightly dismissed the assessee's appeal as not maintainable. The relevant para 6 of the said order is quoted below herein below: “6. The question before this Court is whether anorder passed under Section 271 FA of the 1961 Act bythe Director Income Tax, who holds the rank of aCommissioner in the Income Tax Department isappealable under Section 246 A (1) (q) of the 1961 Actto the Commissioner Appeals. Section 246A (1) (q) ofthe 1961 Act provides for appeals before theCommissioner Appeals against an order of penaltypassed under Chapter 21 of the 1961 Act. Section271FA admittedly falls within Chapter 21 of the 1961Act. To my mind therefore on a plain reading of thesaid provision an appeal against an order passed by anofficer of the rank of Commissioner Income Taxunder Section 271FA of the 1961 Act is maintainablebefore the Commissioner Appeals. From a merereading of the provision for filing appeals against orders passed under Section 271 and 272A (also underChapter XXI) of the 1961 Act before the ITAT, thisCourt cannot on analogy hold that because the saidorders passed by an officer of the rank ofCommissioner of Income Tax should also beappealable before the ITAT. In my considered vieweven though orders of penalty under Section 271 and272A of the 1961 Act fall under Chapter XXI, appealstherefrom stand excluded before the CommissionerAppeals under the general provisions of Section 246A(1) (q) by virtue of a specific provision under Section253 (1) (c) of the (Chapter XXI) of 1961 Act.Consequently, in my view an order under Section 246A(1) (q) of the 1961 Act and no amount of interpretativeexercise can displace law as enacted. Further it is anadmitted fact that in the course of the demand noticeunder Section 156 of the 1961 Act following the order ofpenalty under Section 271FA of the 1961 Act, theassessee was informed that the said order wasappealable before the jurisdictional Commissioner(Appeals) in the instant case Commissioner Appeals IIIJaipur.” 3.In view of admitted legal position that an alternativeremedy by way of appeal is available to the petitioner, Sub-Registraragainst the impugned penalty order before the first appellate authorityi.e. CIT (Appeals), this Court need not to go into the questions ofmerits on the imposition of penalty against the Sub-Registrar and hehas the liberty to file appeal before the CIT (Appeals), against thepenalty order dated 07.05.2010 impugned in the present writ petition. S.B.C.W.P. No.6942/2011 Order dt: 29/05/2013 4.Accordingly, the present writ petition is disposed of withthe directions to the petitioner, Sub-Registrar that if he intend tochallenge the said impugned penalty order before the CIT (Appeals),he may do so by filing appeal within one month from today and if suchappeal is so filed within one month from today, the objection oflimitation will not come in the way and the concerned appellateauthority, namely, the CIT (Appeals) is directed to decide the appealexpeditiously on merits in accordance with law. A copy of this orderbe sent to the concerned parties forthwith. No costs. (Dr. VINEET KOTHARI ), J.