DIRECTOR OF INCOME TAX Vs. RAVI VIJAY

JUDGEMENT

(1.) The above two petitions have a common legal issue for determination without any determinative variation on facts and hence are being disposed of by a common order.

(2.) These petitions have been filed against the orders of Income Tax Appellate Tribunal (ITAT) holding that an appeal against an order of penalty imposed under Section 271 FA falling under Chapter 21 of Income Tax Act, 1961 (herein after the '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.

(3.) 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 Tax, who is equivalent to Commissioner Income Tax with reference to Section 116 (c) of the 1961 Act and that as generally an appeal provides for rectification of orders passed by lower authorities by their higher authority, no statutory appeal from an order of Director Income Tax (a person equivalent to a Commissioner of Income Tax) to Commissioner of Income Tax holding an equivalent rank under the 1961 Act is conceivable. He submits that an appeal against an order of Director Income Tax (Commissioner) passed under Section 271 FA before an equivalent officer i.e. Commissioner Appeals is impliedly not visualised under Section 246A (1) (q) of the 1961 Act and a literal reading of the provision would be an erroneous interpretation. A reference to Section 253 of the 1961 Act has been made and it is submitted that Section 253 (1) (c) of the 1961 Act provides for an appeal to ITAT a higher authority against the orders passed under Section 271 and 272A of the 1961 Act, as the said orders are passed by the officers of the rank of Commissioner Income Tax. Counsel submits that in this view of this matter, this court ought to, resorting to the rule of reading down , hold that Section 246A (1) (q) of the 1961 Act does not provide for an appeal to Commissioner Appeals against an order of penalty passed by Director Income Tax (Commissioner rank) under Section 271 FA of the 1961 Act and the appeal is liable to be heard by the ITAT a superior authority. Counsel further oddly and contrary 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.