MODI SPECIAL PURPOSE MACHINES P.LTD, NAVI MUMBAI V. ITO WD 5(2)(3), MUMBAI

CO 85/MUM/2015

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2981 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: KETAN L VAJANI
• Keywords: Opportunity of being heard; Period of limitation; Competent authority
• Section: 143(3); 5(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NO. 1358 /MUM/ 2014 : (A.Y : 2009 - 10 ) ITO - 5(2)(3), MUMBAI (APPELLANT) VS. M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD., BLOCK NO. 3, SMRUTI, JUPD ROAD - 11, VILE PARLE (W), MUMBAI 400 049 (RESPONDENT) PAN : AADCM9385Q CO NO. 85 /MUM/ 2015 : (A.Y : 2009 - 10 ) M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD., BLOCK NO. 3, SMRUTI, JUPD ROAD - 11, VILE PARLE (W), MUMBAI 400 049 PAN : AADCM9385Q ( CROSS OBJECTOR ) VS. ITO, WARD - 3(1), KALYAN ( RESPONDENT ) ASSESSEE BY : KETAN L. VAJANI REVENUE BY : SUMAN KUMAR DATE OF HEARING : 10 / 02 /201 7 DATE OF PRONOUNCEMENT : 0 9 /0 5 /201 7 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE REVENUE AND CROSS - OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF CIT(A) - 9 , MUMBAI DATED 2 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 2.12.2013 , PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 , WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 2 0 .1 2 .201 2 PASSED BY THE ADDL. CIT, RANGE 5(2) , MUMBAI UNDER SECTION 271D OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THE CAPTIONED CROSS PROCEEDINGS, THE SOLITARY DISPUTE RELATES TO THE PENALTY IMPOSED BY THE ADDL. CIT, RANGE 5(2), MUMBAI U/S 2 71D OF THE ACT AMOUNTING TO RS.3,90,30,000/ - . THE PENALTY HAS SINCE BEEN DELETED BY THE CIT(A) AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE US. THE CIT(A) HAS DELETED THE PENALTY ON THE GROUND THAT THE ORDER PASSED BY THE ADDL. CIT WAS BARRED BY LIMITAT ION, WHICH IS SOUGHT TO BE CHALLENGED BY THE REVENUE IN APPEAL WHEREAS THE RESPONDENT - ASSESSEE HAS PREFERRED A CROSS - OBJECTION WHICH, INTER - ALIA , CONTENDS THAT EVEN ON THE MERITS OF THE CASE, PENALTY U/S 271D OF THE ACT IS NOT ATTRACTED AND HAS THUS SOUGHT TO SUPPORT THE ULTIMATE DECISION OF THE CIT(A). 3. IN THIS BACKGROUND, THE RIVAL PARTIES HAVE BEEN HEARD AND THE RELEVANT MATERIAL PERUSED. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESSEE BEFORE US IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF TH E COMPANIES ACT, 1956 AND IS, INTER - ALIA , ENGAGED IN THE BUSINESS OF MANUFACTURE OF MACHINES, TOOLS AND SPARES. IN THIS CASE, AN ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED BY THE ASSESSING OFFICER ON 29.12.2011 AND IN SUCH PROCEEDINGS HE RECORDED THAT PENALTY PROCEEDINGS U/S 271D OF THE ACT ARE INITIATED SEPARATELY . THE FACTS , AS EMERGING FROM THE ORDERS OF THE LOWER AUTHORITIES , REVEAL THAT ON 30.12.2011 THE ASSESSING OFFICER ISSUED A SHOW CAUSE NOTICE INITIATING THE PROCEEDINGS U/S 271D OF THE ACT AND THEREAFTER REFERRED THE MATTER 3 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 TO THE ADDL. CIT, RANGE 5(2), MUMBAI AND LATER ON, THE SAID ADDL. CIT ISSUED ANOTHER NOTICE U/S 274 R.W.S. 271D OF THE ACT DATED 15.6.2012, WHICH WAS SERVED ON THE ASSESSEE ON 18.6.2012. AFTER CONSIDERING THE EXPLANATIO N FURNISHED BY THE ASSESSEE, THE ADDL. CIT VIDE ORDER DATED 20.12.2012 LEVIED A PENALTY OF RS.3,90,30,000/ - FOR CONTRAVENTION OF THE PROVISIONS OF SEC. 269SS OF THE ACT. NOTABLY, THE ADDL. CIT NOTED THAT ASSESSEE HAD ACCEPTED LOANS FROM SEVEN PERSONS, AS DETAILED IN HIS ORDER, AMOUNTING TO RS.3,90,30,000/ - IN A MANNER OTHERWISE THAN BY WAY OF ACCOUNT PAYEE CHEQUES/DRAFTS, WHICH WAS IN VIOLATION OF THE PROVISIONS OF SEC. 269SS OF THE ACT. A PENALTY OF RS.3,90,30,000/ - WAS LEVIED U/S 271D OF THE ACT FOR THE AFORESAID DEFAULT. 4. BEFORE THE CIT(A), ASSESSEE RAISED VARIED SUBMISSIONS CHALLENGING THE ORDER OF THE ADDL. CIT INCLUDING ON THE ISSUE OF LIMITATION AS WELL AS ON MERITS OF THE PENALTY LEVIED. INSOFAR AS THE ISSUE OF LIMITATION WAS CONCERNED, THE PLE A OF THE ASSESSEE WAS THAT THE ORDER PASSED BY THE ADDL. CIT WAS BARRED BY LIMITATION IN TERMS OF THE PROVISIONS OF SEC. 275(1)(C) OF THE ACT . THE CIT(A) HAS SINCE ACCEPTED THE PLEA OF THE ASSESSEE ON THE ISSUE OF LIMITATION AND THE RELEVANT DISCUSSION IN THIS REGARD IS AS UNDER : - 6.1 I HAVE CAREFULLY CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE, STATEMENT OF FACTS, RELEVANT ASSESSMENT ORDER, WRITTEN SUBMISSION, RELIED UPON CASE LAWS AND THE ARGUMENTS MADE BY THE LAR BEFORE THE UNDERSIGNED. AFTER CONSIDERING THE RIVAL SUBMISSION, I AGREE WITH THE CONTENTION OF THE APPELLANT THAT IN THE LIGHT OF THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF JITENDRA SINGH RATHOD, 83 DTR 227 THE PENALTY ORDER OF THE ADDL. CIT IS TIME - BARRED. IT IS NOTED THAT IN THE INSTANT CASE FACTS ARE ALMOST IDENTICAL TO THE 4 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 FACTS IN THE CASE DECIDED BY HON'BLE RAJASTHAN HIGH COURT IN THE ABOVE REFERRED CASE AS IN BOTH THE CASES PENALTY PROCEEDINGS WERE INITIALLY INITIATED BY THE AO AND THEREAFTER FURTHER NOTICE WAS ISSUED BY THE LEVYING AUTHORITY I .E. ADDL. CIT. WHILE DECIDING THIS ISSUE THE HON'BLE RAJASTHAN HIGH COURT HAS FOLLOWED ITS EARLIER DECISION IN THE CASE OF HISSA R IA BR O S. (2007) 291 ITR 244. IN THESE CASES, THE HON'BLE HIGH COURT HAS CATEGORICALLY HELD THAT THE PERIOD OF LIMITATION FOR THE PURPOSE OF PENALTY U/S 271D WAS NOT TO BE RECKONED FROM THE ISSUE OF SHOW CAUSE NOTICE OF THE JOINT CIT, BUT FROM THE DATE OF ISSUE OF FIRST SHOW - CAUSE FOR INITIATION OF SUCH PENALTY PROCEEDINGS . UNDER THESE CIRCUMSTANCES, I AGREE WITH THE CONTENTION OF THE APPELLANT THAT IN THE JUDICIAL HIERARCHY THE DECISION OF HON'BLE HIGH COURT WILL OVER RULE THE CONTRARY DECISION OF SPECIAL BENCH OF ITAT RELIED UPON BY THE A.O. UNDER THESE CIRCUMSTANCES, IT IS HELD THAT THE PENALTY LEVIED BY THE ADDL. CIT IS BARR ED BY LIMITATION AS THE SAME HAS BEEN LEVIED AFTER EXPIRY OF MORE THAN 6 MONTHS FROM THE INITIATION OF THE PENALTY PROCEEDINGS BY THE AO. THEREFORE, ON THIS GROUND, THE PENALTY LEVIED BY THE ADDL. CIT DESERVES TO BE DELETED. 5. AGAINST THE AFORESAID DECISION, REVENUE IS IN APPEAL BEFORE US. THE SHORT POINT RAISED BY THE LD. DR IS THAT THE CIT(A) ERRED IN CONSIDERING THE LIMITATION DATE FROM THE DATE ON WHICH THE NOTICE WAS FIRST ISSUED BY THE ASSESSING OFFICER BECAUSE SUCH LIMIT ATION IS TO BE SEEN FROM THE DATE ON WHICH THE ADDL. CIT ISSUED THE NOTICE BECAUSE THE COMPETENT AUTHORITY TO LEVY THE PENALTY IS THE ADDL. CIT AND NOT THE ASSESSING OFFICER. THEREFORE, ACCORDING TO THE LD. DR, THE LIMITATION IN THE PRESENT CASE HAS TO BE CONSIDERED FROM 15.6.2012 WHEN THE ADDL. CIT ISSUED THE SHOW CAUSE NOTICE AND NOT FROM 30.12.2011 WHEN THE ASSESSING OFFICER HAD ISSUED THE NOTICE FOR THE PENALTY PROCEEDINGS. IN SUPPORT OF HIS PROPOSITION, THE LD. DR HAS RELIED UPON THE JUDGMENT OF THE HON'BLE KERALA HIGH COURT IN THE CASE OF GRIHALAKSHMI VISION, 379 ITR 100 (KERALA) WHEREIN IT HAS BEEN HELD THAT INITIATION OF PENALTY 5 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 PROCEEDINGS IS TO BE RECKONED ONLY WITH THE ISSUANCE OF NOTICE BY THE JOINT/ADDL. COMMISSIONER AND NOT FROM THE DATE ON W HICH THE ASSESSING OFFICER ISSUED THE NOTICE BECAUSE THE INITIATION CAN ONLY BE DONE BY THE COMPETENT AUTHORITY, WHICH IN THE PRESENT CASE IS THE ADDL. COMMISSIONER. 6. ON THE OTHER HAND, THE LEARNED REPRESENTATIVE FOR THE RESPONDENT - ASSESSEE POINTED OUT THAT THE CIT(A) HAS RELIED UPON THE JUDGMENT OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF JITENDRA SINGH RATHO RE, 83 DTR (RAJ) 227 . BY REFERRING TO THE JUDGMENT OF THE HON'BLE RAJASTHAN HIGH COURT , IT WAS POINTED OUT THAT THE SAME IS IN CONSONANCE WITH THE EARLIER JUDGMENT OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF HISSARIA BROS , 291 ITR 244 (RAJ) WHICH HAD INDEED BEEN IMPLIEDLY AFFIRMED BY THE HON'BLE SUPREME COURT REPORTED AT 3 8 6 ITR 719 ( SC) . 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. SEC. 271D OF THE ACT PRESCRIBES THE PENALTY FOR FAILURE TO COMPLY WITH THE PROVISIONS OF SEC. 269SS OF THE ACT AND SO FAR AS IT IS RELEVANT FOR THE PRESENT CONTROVERSY, IT IS NOTICED THAT SUB - SE CTION (2) THEREOF PRESCRIBES THAT PENALTY IMPOSABLE UNDER THE SECTION SHALL BE IMPOSED BY THE JOINT COMMISSIONER . IN THE CASE BEFORE US, THERE IS NO DISPUTE THAT THE PENALTY HAS BEEN IMPOSED BY THE COMPETENT AUTHORITY ; SO HOWEVER, THE POINT SOUGHT TO BE RAISED IS THAT THE ORDER IMPOSING PENALTY IS BARRED BY LIMITATION HAVING REGARD TO THE PROVISIONS OF SEC. 275(1) OF THE ACT. SEC. 275 LAYS DOWN THE BAR OF LIMITATION FOR IMPOSING PENALT IES UNDER 6 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 CHAPTER XXI OF THE ACT AND FOR THE PRESENT PURPOSE WHAT IS OF RELEVANCE IS SEC. 275(1)(C) OF THE ACT, WHICH READS AS UNDER : - 275. (1) NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHALL BE PASSED (A) .................. (B) ................... (C) IN ANY OTHER CASE, AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED, OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHICHEVER PERIOD EXPIRES LATER. A PERUSA L OF THE AFORESAID REVEALS THAT TWO - FOLD LIMITATION HAS BEEN PROVIDED FOR PASSING OF AN ORDER IMPOSING PENALTY. IN TERMS THEREOF, IT IS PRESCRIBED THAT NO ORDER SHALL BE PASSED (I) AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH PROCEEDINGS, IN THE COU RSE OF WHICH ACTION FOR IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED , OR (II) SIX MONTHS FROM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSING OF PENALTY IS INITIATED, WHICHEVER PERIOD EXPIRES LATER. 8. IN THE CONTEXT OF THE INSTANT FACT - SITUATION, THE PLEA OF THE ASSESSEE IS THAT THE PENALTY PROCEEDINGS WERE INITIATED ON 30.12.2011 WHEN THE ASSESSING OFFICER ISSUED THE SHOW CAUSE NOTICE U/S 271D OF THE ACT. ACCORDING TO THE ASSESSEE, THE ORDER PASSED BY THE ADDL. CIT ON 20.12.2012 IMPOSING THE PENALTY WAS THUS BARRED BY LIMITATION INASMUCH AS THE PERIOD AVAILABLE TO PASS SUCH ORDER IN TERMS OF THE FIRST 7 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 LIMB WAS 31.3.2012 AND IN TERMS OF THE SECOND LIMB, IT WAS 30.6.2012. THEREFORE, THE PLEA OF THE ASSE SSEE IS THAT THE OUTER LIMIT TO PASS THE ORDER IMPOSING PENALTY WAS 30.6.2012 AND , AS A CONSEQUENCE, THE ORDER PASSED BY THE ADDL. CIT DATED 20.12.2012 IS BEYOND THE PERMISSIBLE PERIOD. 9. ON THE OTHER HAND, THE STAND OF THE REVENUE IS THAT THE DATE OF RECKONING FOR INITIATION OF PENALTY PROCEEDING ACTION CANNOT BE CONSTRUED TO BE 30.12.2011 SINCE THE SAID NOTICE WAS ISSUED BY THE ASSESSING OFFICER, WHO IS NOT THE COMPETENT AUTHORITY PRESCRI BED IN SEC. 271D OF THE ACT TO IMPOSE THE PENALTY. INSTEAD, ACCORDING TO THE REVENUE, THE INITIATION HAS TO BE RECKONED FROM 15.6.2012 WHEN THE COMPETENT AUTHORITY, I.E., THE ADDL. CIT ISSUED THE SHOW CAUSE NOTICE U/S 271D OF THE ACT. 10. WE FIND THAT SO FAR AS THE JUDGMENT OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF JITENDRA SINGH RATHORE (SUPRA) IS CONCERNED, THE SAME IS DIRECTLY ON THE POINT WHICH SAYS THAT EVEN WHEN THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY U/S 271D OF THE ACT IS THE JOINT COMMISSIONER, THE PERIOD OF LIMITATION FOR THE PURPOSE OF SUCH PENALTY PROCEEDINGS WAS TO BE RECKONED FROM THE DATE OF ISSUE OF FIRST SHOW CAUSE NOTICE BY THE ASSESSING OFFICER AND NOT FROM THE DATE ON WHICH THE SHOW CAUSE NOTICE WAS ISSUED BY THE JOINT CO MMISSIONER. THE AFORESAID JUDGMENT CLEARLY SUPPORTS THE VERSION CANVASSED BY THE ASSESSEE, WHICH HAS SINCE BEEN ACCEPTED BY THE CIT(A). ON THE OTHER HAND, THE HON'BLE KERALA HIGH COURT IN THE CASE OF GRIHALAKSHMI VISION (SUPRA) H AS TAKEN A CONTRARY VIEW, I.E. THE INITIATION OF PROCEEDINGS FOR 8 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 LEVY OF PENALTY HAVE TO BE RECKONED FROM THE DATE ON WHICH THE COMPETENT AUTHORITY TO LEVY THE PENALTY HAS INITIATED THE PROCEEDINGS. THUS, THERE IS A CLEAR CLEAVAGE OF OPINION BETWEEN THE TWO HIGH COURTS , WITH NONE OF THEM BEING OUR JURISDICTIONAL HIGH COURT. THEREFORE, IN SUCH A SITUATION, AND IN THE ABSENCE OF ANY PRONOUNCEMENT FROM THE JURISDICTIONAL HIGH COURT, WE DEEM IT FIT AND PROPER TO FOLLOW THE INTERPRETATION OF LAW WHICH IS FAVOURABLE TO THE ASSESSEE FOLLOWING THE RATIO OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LTD., 88 ITR 192 (SC) . THUS, IN THIS VIEW OF THE MATTER, THE DECISION OF CIT(A) DESERVES TO BE AFFIRMED, WHICH IS IN CONSONANCE WITH THE LAW ENUNCIATED BY THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF JITENDRA SINGH RATHORE (SUPRA). 11. APART FROM THE AFORESAID, WE MAY ALSO REFER TO THE DECISION OF THE JODHPUR BENCH OF THE TRIBUNAL IN THE CASE OF HISSARIA BROTHERS , 73 TTJ 0 001 , WHICH HAS BEEN RELIED BY THE ASSESSEE BEFORE US, ON THIS ASPECT WHEREIN T HE JODHPUR BENCH OF THE TRIBUNAL WAS DECIDING THE QUESTION AS TO THE DATE ON WHICH THE PENALTY PROCEEDINGS U/S 271D OF THE ACT ARE SAID TO HAVE BEEN INITIATED. THE SAI D DECISION OF THE TRIBUNAL HAS SINCE TRAVELLED TO THE HON'BLE RAJASTHAN HIGH COURT IN 291 ITR 244 (RAJ). ACCORDING TO THE JODHPUR BENCH OF THE TRIBUNAL, THE PENALTY PROCEEDINGS WILL HAVE TO BE HELD AS HAVING BEEN INITIATED WHEN THE ASSESSING OFFICER TOOK COGNIZANCE OF THE FACT OF VIOLATION AND ISSUED NOTICE PRESCRIBED UNDER THE RELEVANT SECTION AND THAT THE INITIATION OF SUCH PROCEEDINGS CANNOT BE SAID TO HAVE BEEN DONE ON THE DATE WHEN THE JOINT COMMISSIONER ISSUED THE NOTICE. THE JODHPUR BENCH OF THE TR IBUNAL REFERRED TO SIMILAR PROVISIONS OF THE ACT, NAMELY SEC. 272A OF 9 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 THE ACT, WHICH ALSO PROVIDES FOR IMPOSING PENALTY UNDER CHAPTER XXI AND THEREIN ALSO, INCOME - TAX AUTHORITIES OTHER THAN THE ASSESSING OFFICER HAVE ALSO BEEN MADE COMPETENT FOR LEVY OF PENALTY. SUB - SECTION (4) OF SEC. 272A SPECIFICALLY PRESCRIBES THAT NO ORDER SHALL BE PASSED BY ANY INCOME - TAX AUTHORITY REFERRED TO IN THE SECTION UNLESS THE PERSON ON WHOM THE PENALTY IS PROPOSED TO BE IMPOSED IS GIVEN AN OPPORTUNITY OF BEING HEARD IN TH E MATTER BY SUCH AUTHORITY . NOTABLY, SUCH A PRESCRIPTION IS CONSPICUOUS BY ITS ABSENCE IN SEC. 271D OF THE ACT . THEREFORE, OUR COORDINATE BENCH PROCEEDED TO HOLD THAT PENALTY PROCEEDINGS U/S 271D OF THE ACT WOULD HAVE TO BE HELD AS HAVING BEEN INITIATE D WHEN THE ASSESSING OFFICER TOOK COGNIZANCE OF THE FACT OF VIOLATION AND ISSUED THE NOTICE PRESCRIBED UNDER THE RELEVANT SECTION. IN VIEW OF THE AFORESAID SCHEMATIC UNDERSTANDING OF THE STATUTE ALSO, WE FIND THAT THE DECISION OF CIT(A) DESERVES TO BE AFF IRMED APART FROM THE FACT THAT FOLLOWING THE RATIO OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LTD. (SUPRA), THE VIEW LAID DOWN BY THE HON'BLE RAJASTHAN HIGH COURT, BEING A VIEW FAVOURABLE TO THE ASSESSEE , COMES TO THE RE SCUE OF THE ASSESSEE AND THE ORDER IMPOSING PENALTY BY THE ADDL. CIT IS THUS BARRED BY LIMITATION IN TERMS OF SEC. 275(1)(C) OF THE ACT. THUS, ON THIS ASPECT, ORDER OF THE CIT(A) IS AFFIRMED AND REVENUE FAILS IN ITS APPEAL. 12. INSOFAR AS THE CROSS OBJEC TION IS CONCERNED, THE SAME IS RENDERED INFRUCTUOUS SINCE WE HAVE ALREADY AFFIRMED THE DECISION OF CIT(A) AND THE NECESSARY RELIEF ALLOWED BY THE CIT(A) TO THE ASSESSEE , STANDS AFFIRMED. THUS, THE CROSS OBJECTION IS DISMISSED AS INFRUCTUOUS. 10 M/S. MODI SPECIAL PURPOSE MACHINES PVT. LTD. ITA NO.1358/MUM/2014 & CO NO.85/MUM/2015 13. RESULTAN TLY, APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 9 T H MAY, 2017. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 9 T H MAY , 201 7 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI