SMT. KUSUM JAJOO, Shajapur V. THE ITO, Shajapur

CO 5/IND/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1230 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 29-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJIV GOYAL
• Assessee Lawyers: R A VERMA
• Keywords: Gift; Period of limitation; Reasonable cause; Competent authority
• Section: 143(3)

Judgement Text

SMT. KUSM JAJOO ITA NO. 33/IND/2014 & CO 5/IND/2014 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 33/IND/2014 A.Y.2008-09 INCOME TAX OFFICER SHAJAPUR ::: APPELLANT VS SMT. KUSUM JAJOO SHAJAPUR ::: RESPONDENT CO NO. 5/IND/2014 ARISING OUT OF ITA NO. 33/IND/2014 SMT. KUSUM JAJOO SHAJAPUR ::: OBJECTOR VS INCOME TAX OFFICER SHAJAPUR ::: RESPONDENT APPELLANT BY SHRI R.A. VERMA RESPONDENT BY SHRI SANJIV GOYAL DATE OF HEARING 24.8.2015 DATE OF PRONOUNCEMENT 2 7 .8.2015 SMT. KUSM JAJOO ITA NO. 33/IND/2014 & CO 5/IND/2014 2 O R D E R PER SHRI B.C. MEENA, AM THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE EMANATE FROM THE ORDER OF THE LEARNED CIT(A), UJJAIN, DATED 17.10.2013. 2. THE GROUND OF APPEAL TAKEN BY THE REVENUE IN ITS APPEAL IS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN HOLDING THAT THE PENALTY ORDER U/S 271D PASSED ON 26.03.2012 WAS BARRED BY TIME LIMITATION WHEN THE FIRST NOTICE FOR LEVYIN G PENALTY IN THE CASE U/S 271D WAS ISSUED BY THE COMPETENT AUTHORITY I.E. ADDL. CIT ONLY ON 7.7.2011 AFTER THE MATTER WAS REFERRED TO THE OFFIC E OF THE ADDL. CIT, BY THE A.O. ON 26.4.2011. IN THE CROSS OBJECTION THE ASSESSEE HAS RAISED THE GRO UND TO THE EFFECT BECAUSE ON FACTS AND CIRCUMSTANCES OF T HE SMT. KUSM JAJOO ITA NO. 33/IND/2014 & CO 5/IND/2014 3 CASE, THE LEARNED CIT(APPEALS) DID NOT CONSIDER THE ME RITS OF THE CASE AND WRONGLY PASSED THE ORDER. 3. THE ASSESSEE IS AN INDIVIDUAL. THE ASSESSING OFFIC ER RECEIVED INFORMATION FROM AIR AND THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER FOUND THAT THE ASSESS EE RECEIVED GIFT IN CASH OF RS. 9 LACS AS THERE WAS CASH D EPOSIT OF RS. 9 LACS IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 2 71-D OF THE ACT BY HIS ORDER DATED 13.12.2010/20.12.2010. THE JOINT COMMISSIONER OF INCOME TAX RANGE-2, UJJAIN LEVI ED PENALTY VIDE ORDER DATED 26.3.2012. THE LEARNED CIT( A) ANNULLED THE PENALTY BY HOLDING THAT LEVY OF PENALTY U/ S 271-D OF THE ACT WAS BARRED BY TIME. THE RELEVANT PORT ION OF THE ORDER OF THE LEARNED CIT(A) IS REPRODUCED AS UNDER :- SMT. KUSM JAJOO ITA NO. 33/IND/2014 & CO 5/IND/2014 4 4.1 GROUND NO. 1 IS THAT LEVY OF PENALTY U/S 271D OF THE IT ACT GOT TIME BARRED. THE PROCEEDINGS IN T HE COURSE OF WHICH ACTION FOR IMPOSITION OF PENALTY WAS INITIATED, WAS THE ASSESSMENT ORDER U/S 143(3) PASSED ON 13.12.2010. THE PENALTY NOTICE U/S 271D WAS ISSUED BY THE ITO, SHAJAPUR ON 20.12.2010. HENCE U/S 275(1)(C) TIME FOR PASSING PENALTY ORDER WAS OVER IN 6 MONTHS I.E. UPTO 30.06.2011 BUT PENALTY ORDER WAS PASSED ON 26.03.2012 WHICH IS CLEARLY TIME BARRED. HENCE ORDER LEVYING PENALTY U/S 271D IS HELD TIME BARRED. GROUND NO. (1) OF THE APPEAL IS ALLOWED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE PLEADED THAT UNDER SIMILAR CIRCUMSTANCES, HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. JITENDRA SINGH RATHORE; 3 52 ITR 327 HAS HELD THAT THE PERIOD OF LIMITATION FOR TH E SMT. KUSM JAJOO ITA NO. 33/IND/2014 & CO 5/IND/2014 5 PURPOSE OF SUCH PENALTY PROCEEDINGS WAS NOT TO BE RECKONED FROM THE ISSUE OF FIRST SHOW CAUSE BY THE J OINT COMMISSIONER BUT THE PERIOD OF LIMITATION WAS TO BE RECKONED FROM THE DATE OF ISSUE OF FIRST SHOW CAUSE F OR INITIATION OF SUCH PENALTY PROCEEDINGS. HE ALSO RELIED UPON THE DECISION OF THE BOMBAY BENCH OF THE TRIBUNAL IN THE CASE OF PARIN K. RAJWANI VS.JCIT, MUMBAI WHEREIN IT WAS HELD THAT SIX MONTH PERIOD FOR THE PURPOSE OF CLAUSE (C) OF SECTION 275(1) OF THE ACT IS TO BE COMPUTED FROM TH E DATE OF ISSUE OF FIRST SHOW CAUSE NOTICE BY THE A.O. AND NOT FROM THE DATE OF ISSUE OF FIRST SHOW CAUSE NOTICE ISSUED B Y THE JOINT COMMISSIONER. THE LEARNED AR SUBMITTED THAT ON MERITS ALSO THE ISSUE IS COVERED BY THE DECISION OF THE ITAT, INDORE BENCH, INDORE, IN THE CASE OF MANGILAL S/O BHANWARLAL CHOUDHARY VS. CIT; REPORTED IN 2010 (15) ITJ 225 WHEREIN IT WAS HELD THAT WHEN DEALING WITH CLOSE SMT. KUSM JAJOO ITA NO. 33/IND/2014 & CO 5/IND/2014 6 RELATIONS AND WHEN THERE IS PERFECT SOURCE THEN NO PE NALTY SHOULD BE LEVIED. HE SUBMITTED THAT THE GIFT WAS FROM THE HUSBAND TO WIFE. THUS, ON MERITS ALSO THE ISSUE IS CO VERED IN FAVOUR OF THE ASSESSEE. IT WAS PLEADED THAT ITAT, IN DORE BENCH IN THE CASE OF UPENDRA SINGH KEER, BURHANPUR VS. ADDL. CIT; 2009 (13) ITJ 51 HELD THAT TRANSFER FROM S ISTER CONCERN BONAFIDELY IS A REASONABLE CAUSE FOR NOT LEVYIN G PENALTY. 5. AFTER HEARING BOTH THE SIDES, WE HOLD THAT THE REV ENUE HAS FAILED TO CONTROVERT THE FINDINGS RECORDED BY THE LEARNED CIT(A) IN RESPECT OF GETTING TIME BARRED THE LEVY OF PENALTY. CONSIDERING THE CASE LAWS RELIED ON BY THE L EARNED COUNSEL FOR THE ASSESSEE, WE FIND NO MERIT IN THE APP EAL OF THE REVENUE WITH REGARD LIMITATION OF LEVY OF PENALTY. SINCE WE HAVE UPHELD THE ORDER OF THE LEARNED CIT(A) WITH R EGARD TO LIMITATION OF PENALTY, THEREFORE, WE FIND NO NECES SITY TO SMT. KUSM JAJOO ITA NO. 33/IND/2014 & CO 5/IND/2014 7 ADJUDICATE THE GROUND RAISED IN THE CROSS OBJECTION BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL AND THE CROSS OBJECTION S TAND DISMISSED. PRONOUNCED IN OPEN COURT ON 27 TH AUGUST, 2015 SD SD (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 27 TH AUGUST, 2015 DN/-