Shri T.P Alexander, Pune V. ITO, Pune

ITA 1128/PUN/2010

• Counselvise Citation: 112824514 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1988-1989
• Appeal Filed On: 12-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPUSTHAMA
• Assessee Lawyers: V JAIRAMAN
• Keywords: Period of limitation
• Section: 143(3); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI I C SUDHIR, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER I.T.A. NO. 1128/PN/10 (ASSTT. YEAR: 1988-89) SHRI T P ALEXANDER, .. APPELLANT PLOT NO 4, S.NO 51, BHAIRAVNAGARI, DHANORI, PUNE PAN ACWPA 0630N VS. INCOME-TAX OFFICER, .. RESPONDENT WD. 2(3) PUNE APPELLANT BY: SHRI V JAIRAMAN RESPONDENT BY: SMT ANN KAPUSTHAMA DATE OF HEARING: 06.02.2012 DATE OF PRONOUNCEMENT: 08.02.2012 ORDER PER G.S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)II, PUNE DATED 25. 6.2010 WHICH, IN TURN, HAS ARISEN FROM THE PENALTY ORDER OF THE ASSESSING OFFICER DATED 26.2.2007 PASSED UNDER SECTION 271(1)(C) OF THE INCOME -TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 1988 -89. 2. THIS APPEAL IS BEING DECIDED ON THE PRELIMINARY GRO UND RAISED BY THE ASSESSEE TO THE EFFECT THAT THE ORDER OF THE ASSESSING OFFICE R LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT DATED 26.2.2007 IS B ARRED BY LIMITATION IN TERMS OF SECTION 275(1)(A) OF THE ACT. IN SUPPORT OF T HE AFORESAID, THE FACT POSITION CANVASSED BY THE ASSESSEE IS AS FOLLOWS. IT IS POINT ED OUT THAT AN ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 144A OF THE ACT WAS FINALIZED BY THE ASSESSING OFFICER ON 31.3.1995 AT RS 11, 33,970/- AS AGAINST RETURNED INCOME OF RS 5,01,741/-. THEREAFTER, THE ADD ITIONS MADE IN THE ASSESSMENT WERE SUBJECT-MATTER OF APPEAL AND FINALLY THE SAME WAS DISPOSED OFF BY THE TRIBUNAL IN ITA NO 362/PN/96 VIDE ITS ORD ER DATED 17.2.2006. AS PER THE APPELLANT, THE SAID ORDER OF THE TRIBUNAL WAS SER VED ON COMMISSIONER OF INCOME-TAX-I, PUNE ON 23.5.2006 AND IN TERMS THEREOF, A COMMUNICATION FROM THE REGISTRY OF THE TRIBUNAL DATED 27.4.2007 HAS BEEN PLACED AT PAGE 3 OF THE PAPER BOOK. ACCORDINGLY, IT IS SUBMITTED THAT THE ORDER OF THE TRIBUNAL HAVING BEEN RECEIVED BY THE COMMISSIONER OF INCOME-TAX-I, PU NE ON 23.5.2006, THE LIMITATION PROVIDED UNDER SECTION 275(1)(A) OF THE ACT FOR THE ASSESSING OFFICER TO PASS A REQUISITE ORDER UNDER SECTION 271(1)(C) EXPIRED ON 30.11.2006. THEREFORE, THE ORDER OF PENALTY PASSED BY THE ASSESSING O FFICER DATED 26.2.2007 IS BARRED BY LIMITATION AND DESERVES TO BE SE T ASIDE. 3. ON THE OTHER HAND, THE AFORESAID ASSERTION OF THE A PPELLANT IS SOUGHT TO BE NEGATED BY THE LEARNED DEPARTMENTAL REPRESENTATIV E BY CONTENDING THAT THE LIMITATION FOR THE ASSESSING OFFICER TO PASS THE ORDER IN THE PRESENT CASE WOULD EXPIRE ON 28.2.2007 AND, THEREFORE, THE ORDER PASSED BY THE ASSESSING OFFICER ON 26.2.2007 IS WITHIN THE PERIOD OF LIMITAT ION. FOR THIS, IT IS SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 17.2.2006 (SUPR A) WAS SERVED ON 23.5.2006 ON THE COMMISSIONER OF INCOME-TAX-I, PUNE, WHO DID NOT HAVE THE JURISDICTION OVER THE CASE; AND, THAT ON A VERIFICATION CARRIED OUT BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, PUNE DURING TH E IMPUGNED PROCEEDINGS, IT WAS FOUND THAT THE COMMISSIONER OF INCOM E-TAX-II, PUNE WHO HAD THE REQUISITE JURISDICTION OVER THE CASE RECEIVED T HE ORDER OF THE TRIBUNAL ON 24.8.2006. THEREFORE, THE LIMITATION UNDER SECTION 275(1)(A) WAS TO BE CALCULATED WITH EFFECT FROM 24.8.2006, WHICH WOULD BE 2 8.2.2007 AND NOT 30.11.2006, AS CANVASSED BY THE ASSESSEE. 4. IN RESPONSE TO THE AFORESAID OBJECTION, THE PLEA SET- UP BY THE ASSESSEE IS THAT THE ORIGINAL JURISDICTIONAL COMMISSIONER OF INC OME-TAX WAS THE COMMISSIONER OF INCOME-TAX-I, PUNE; AND, THAT IN THIS VIEW OF THE MATTER, THE TRIBUNAL CORRECTLY SERVED THE ORDER ON THE COMMISSIONER O F INCOME-TAX-I, PUNE ON 23.5.2006. ANY CHANGE IN JURISDICTION OF THE COMMISSI ONER OF INCOME-TAX CONCERNED, WHICH HAD HAPPENED DURING THE PENDENCY OF AP PEAL BEFORE THE TRIBUNAL WAS ONLY REQUIRED TO BE NOTIFIED TO THE TRI BUNAL BY THE DEPARTMENT AND IN THIS REGARD, NO ACTION HAS BEEN TAKEN BY THE DE PARTMENT. THEREFORE, THE RECEIPT OF ORDER OF THE TRIBUNAL BY THE COMMISSIONER O F INCOME-TAX-I, PUNE ON 23.5.2006 WAS A PROPER RECEIPT AS MANDATED BY SECTION 27 5(1)(A) OF THE ACT AND, THEREFORE, THE PLEA OF THE REVENUE IS UNTENABLE . IT IS FURTHER POINTED OUT THAT IN SOMEWHAT SIMILAR SITUATION THE PUNE TRIBUNAL IN THE CASE OF PRAKASH BHALAJI BAFNA IN ITA NO 845/PN/05, HAS OPINED THAT I F THE DEPARTMENT DOES NOT INFORM THE TRIBUNAL OF THE CHANGE IN JURISDICTION OF T HE COMMISSIONER OF INCOME-TAX CONCERNED AND IF THE TRIBUNAL SENDS THE ORDE R TO THE COMMISSIONER OF INCOME-TAX AS APPEARING ON THE RECORDS O F THE TRIBUNAL, THIS WOULD IMPLY PROPER SERVICE OF THE ORDER ON THE PARTICU LAR DATE. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IN THIS CASE, THE ORDER OF THE TRIBUNAL DATED 17.2.2006 HAS BEEN RECEIV ED BY THE COMMISSIONER OF INCOME-TAX-I, PUNE ON 23.5.2006 AND IF CONSIDERED O N THIS BASIS, THE LIMITATION FOR THE ASSESSING OFFICER TO PASS AN ORDER UNDE R SECTION 271(1)(C) ENDS ON 30.11.2006 IN TERMS OF SECTION 275(1)(A) OF TH E ACT; AND, AND ACCORDINGLY THE IMPUGNED ORDER PASSED BY THE ASSESSING OFF ICER ON 27.2.2007 IS BARRED BY LIMITATION. THE ONLY POINT OF RESISTANCE F ROM THE SIDE OF THE REVENUE IS THAT THE RECEIPT OF THE ORDER OF TRIBUNAL BY THE COMMISSIONER OF INCOME-TAX-I, PUNE IS NOT VALID, INASMUCH AS ON THAT PAR TICULAR DATE COMMISSIONER OF INCOME-TAX-I, PUNE WAS NOT THE JURISDICT IONAL COMMISSIONER OF INCOME-TAX. THE CONCERNED JURISDICTIONAL COMMISSIONER W AS COMMISSIONER OF INCOME-TAX-II, PUNE IN SOMEWHAT SIMILAR SITUATION, THE TRIBUNAL IN THE CASE OF PRAKASH BHALAJI BAFNA (SUPRA) HAS HELD AS UNDER: 15. THIS LEAVES US NOW TO DECIDE AS TO WHETHER THE ORDER SENT BY THE TRIBUNAL TO THE COMMISSIONER, KARVE ROAD, PUNE, CAN BE CONSIDER ED TO BE SENT IN DUE COMPLIANCE WITH THE PROVISIONS CONTAINED IN SECTION 254(3) OF THE ACT, SO AS O SAY THAT THE DATE ON WHICH THE COMMISSIONER, KARVE ROAD, PUN E, RECEIVED THE COPY OF THE TRIBUNAL WOULD BE MATERIAL FOR THE PURPOSES OF COMP UTING THE PERIOD OF LIMITATION U/S 153(2A) OF THE ACT FOR PASSING A FRESH ASSESSMENT O RDER BY THE AO. 16. AS DISCUSSED ABOVE, IT IS AN ADMITTED POSITION THAT NO INTIMATION OR INFORMATION WAS GIVEN BY THE DEPARTMENT TO THE TRIBUNAL AS TO T HE CHANGE OF JURISDICTION OF THE AO FROM ONE TO ANOTHER. THEREFORE, THE TRIBUNAL WAS JU STIFIED IN DISPATCHING THE COPY OF ORDER PASSED BY IT TO THE CIT KARVE ROAD, PUNE AS P ER THE LAST INFORMATION AND MATERIALS AVAILABLE IN THE RECORDS. THEREFORE, THE DATE ON WHICH THE ORDER OF THE TRIBUNAL WAS RECEIVED BY THE CIT KARVE ROAD, PUNE W OULD BE MATERIAL FOR THE PURPOSE OF COMPUTING THE PERIOD OF LIMITATION FOR P ASSING THE FRESH ASSESSMENT ORDER BY THE AO. IN OUR VIEW, THE AFORESAID OBSERVATIONS OF THE TRIBUN AL IN THE CASE OF PRAKASH BHALAJI BAFNA (SUPRA) CLEARLY COVER THE FACT-SITUATION IN THE PRESENT CASE ALSO. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN DISP ATCHING THE COPY OF THE ORDER DATED 17.2.2006 TO THE COMMISSIONER OF INCOME-TA X-I, PUNE ON THE BASIS OF LAST INFORMATION AND MATERIAL AVAILABLE IN THE RE CORDS. THEREFORE, IT IS THE DATE OF 23.5.2006 WHEN THE ORDER OF THE TRIBUNAL HA S BEEN RECEIVED BY THE COMMISSIONER OF INCOME-TAX-I, PUNE, WHICH IS MATERIAL F OR PURPOSES OF COMPUTING THE PERIOD OF LIMITATION PROVIDED UNDER SEC TION 275(1)(A) FOR THE ASSESSING OFFICER TO PASS AN ORDER OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, AS CANVASSED BY THE APPELLANT. 6. APART FROM THE AFORESAID, THE LEARNED DEPARTMENTA L REPRESENTATIVE HAS SOUGHT TO DISTINGUISH THE DECISION IN THE CASE OF PRAKASH BHALAJI BAFNA (SUPRA) BY POINTING OUT THAT IN THE PRESENT CASE THE APPEAL BEFORE THE TRIBUNAL HAS BEEN FILED BY THE ASSESSEE AND, THEREFORE, THERE WAS NO OCCASION FOR THE DEPARTMENT TO NOTIFY THE CHANGE IN THE JURISDICTION O F THE COMMISSIONER OF INCOME-TAX, IF ANY. THUS, ACCORDING TO THE REVENUE, T HE DECISION IN THE CASE OF PRAKASH BHALAJI BAFNA (SUPRA) CANNOT BE APPLIED. IN OUR VIEW, THE AFORESAID PLEA WOULD NOT JUSTIFY OUR DEPARTURE FROM THE RATIO NALE LAID DOWN BY OUR CO- ORDINATE BENCH IN THE CASE OF PRAKASH BHALAJI BAFNA (SUPR A), INASMUCH AS IN THAT CASE TOO, THE TRIBUNAL WAS CONSIDERING AN APPEAL F ILED BY THE ASSESSEE AND NOT BY THE REVENUE. THEREFORE, THE DISTINCTION SOU GHT TO BE MADE OUT BY THE REVENUE AND WHICH HAS BEEN ACCEPTED BY THE COMMISSION ER OF INCOME- TAX (APPEALS), DESERVES TO BE DIS-REGARDED. 7. IN THIS VIEW OF THE MATTER, WE UPHOLD THE PLEA OF THE ASSESSEE THAT THE ORDER OF PENALTY DATED 26.2.2007 PASSED BY THE ASSESSING OFFICER IS BARRED BY LIMITATION WITHIN THE MEANING OF SECTION 275(1)(A) O F THE ACT AND IS LIABLE TO BE SET-ASIDE. THE ASSESSEE HAS ALSO RAISED OTHER GROUNDS ASSAIL ING THE IMPOSITION OF PENALTY, THE SAME ARE NOT BEING ADVERTE D TO, AS THEY ARE RENDERED ACADEMIC IN NATURE, CONSEQUENT TO OUR DECISION IN THE PRECEDING PARAS THAT THE IMPUGNED ORDER OF THE ASSESSING OFFICER IS BARRED BY LIMITATION. RESULTANTLY, IN VIEW OF THE AFORESAID DISCUSSION THE IM PUGNED ORDER OF THE ASSESSING OFFICER IS HELD BARRED BY LIMITATION AND IS SET- ASIDE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED, AS AB OVE. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF FEBRUARY, 2012. SD/- SD/- (I C SUDHIR) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER PUNE: DATED: 8 TH FEBRUARY, 2012 B COPY OF THE ORDER FORWARDED TO : 1. SHRI T P ALEXANDER, PUNE 2. THE ITO WD 2(3), PUNE 3. THE CIT(A)-II, PUNE 4. THE CIT-II PUNE 5. THE D.R, A BENCH, PUNE 6. GUARD FILE TRUE COPY BY ORDER SR. PS, ITAT, PUNE BENCHES, PUNE