Smt. Bharti Parkhi, Indore V. The I..T.O., Indore

ITA 17/IND/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3083 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-03-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 11-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation
• Section: 260A; 246; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO. 17/IND/2010 A.YS. 2006-07 SMT. BHARTI PARKHI INDORE PAN ADQPP-7130F APPELLANT VS INCOME TAX OFFICER 5(1) INDORE RESPONDENT APPELLANT BY : SHRI ASHISH GOYAL RESPONDENT BY : SMT. APARNA KARAN, SR. DR O R D E R THIS APPEAL IS BY THE ASSESSEES AGAINST THE ORDER O F THE LEARNED CIT(A) DATED 13.11.2009 ON THE GROUND THAT THE IMPU GNED ORDER IS BAD IN LAW, NOT SUSTAINABLE, BARRED BY LIMITATION, CONT RARY TO MATERIAL AND LAW, WITHOUT JURISDICTION AND ILLEGAL, THEREFORE, NEEDS TO BE QUASHED AND FURTHER ERRED IN SUSTAINING THE PENALTY OF RS.79,6 11/- IMPOSED U/S 271(1)(C) OF THE ACT. 2. DURING HEARING OF THIS APPEAL, I HAVE HEARD SHRI ASHISH GOYAL AND SMT. APARNA KARAN, SR. DR. AT THE OUTSET , THE LD. COUNSEL FOR THE ASSESSEE ADVANCED HIS ARGUMENT ON THE LEGAL ISS UE CHALLENGING THE 2 MAINTAINABILITY OF THE ORDER ITSELF FOR WHICH MY AT TENTION WAS INVITED TO SECTION 275 OF THE ACT. ON THE OTHER HAND, LEARNED SR. DR, DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT THIS LEGAL GROUND WAS NOT RAISED BEFORE THE LD. FIRST APPELLATE AUTHORITY AND SUPPOR TED THE IMPOSITION OF PENALTY. 3. I HAVE CONSIDERED THE ARGUMENTS PUT-FORTH BY THE LEARNED RESPECTIVE COUNSELS AND PERUSED THE MATERIAL AVAILA BLE ON FILE. BEFORE COMING TO ANY CONCLUSION, I AM REPRODUCING HEREUNDE R THE RELEVANT PROVISIONS OF THE ACT. SECTION 275 READS AS UNDER : - 275. 95 [(1)] NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTE R SHALL BE PASSED 96 [( A ) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OTHER ORDER IS THE SUBJECT-MATTER OF AN APPEAL TO THE 97 [***] COMMISSIONER (APPEALS) UNDER SECTION 246 98 [OR SECTION 246A ] OR AN APPEAL TO THE APPELLATE TRIBUNAL UNDER SECTION 253 , AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COU RSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITI ATED, ARE COMPLETED 99 , OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE 1 [***] COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE , THE APPELLATE TRIBUNAL IS RECEIVED BY THE CHIEF COM MISSIONER OR COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER : 2 [ PROVIDED THAT IN A CASE WHERE THE RELEVANT ASSESSMENT OR OTH ER ORDER IS THE SUBJECT-MATTER OF AN APPEAL TO THE COMMISSIONER (APPEALS) UNDER SECTION 246 OR SECTION 246A , AND THE COMMISSIONER (APPEALS) PASSES THE ORDER ON OR AFTER THE 1ST DAY OF JUNE, 2003 DISPOSING OF SUCH APPEAL, AN ORDER IMPOSING PENALTY SHALL BE PASSED BEFORE THE EXPIRY OF THE FINANCIAL YEAR IN W HICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR IMPO SITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED, OR WITHI N ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER OF THE COMMISSIONER (APPEALS) IS RECEIVED BY THE CHIEF COM MISSIONER OR COMMISSIONER, WHICHEVER IS LATER;] ( B ) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OTHER ORDER IS THE SUBJECT- MATTER OF REVISION UNDER SECTION 263 2 [OR SECTION 264 ], AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN W HICH SUCH ORDER OF REVISION IS PASSED; 3 ( C ) IN ANY OTHER CASE, AFTER THE EXPIRY OF THE FINANC IAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED, OR SIX M ONTHS FROM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHICHEVER PERIOD EXPIRES LATER.] 3 [(1A) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OT HER ORDER IS THE SUBJECT-MATTER OF AN APPEAL TO THE COMMISSIONER (AP PEALS) UNDER SECTION 246 OR SECTION 246A OR AN APPEAL TO THE APPELLATE TRIBUNAL UNDER SECTION 253 OR AN APPEAL TO THE HIGH COURT UNDER SECTION 260A OR AN APPEAL TO THE SUPREME COURT UNDER SECTION 261 OR REVISION UNDER SECTION 263 OR SECTION 264 AND AN ORDER IMPOSING OR ENHANCING OR REDUCING OR CANCELLING PENALTY OR DROP PING THE PROCEEDINGS FOR THE IMPOSITION OF PENALTY IS PASSED BEFORE THE ORDER OF THE COMMISSIONER (APPEALS) OR THE APPELLATE TRIB UNAL OR THE HIGH COURT OR THE SUPREME COURT IS RECEIVED BY THE CHIEF COMMISSIONER OR THE COMMISSIONER OR THE ORDER OF RE VISION UNDER SECTION 263 OR SECTION 264 IS PASSED, AN ORDER IMPOSING OR ENHANCING OR REDUCING OR CANCELLING PENALTY OR DROP PING THE PROCEEDINGS FOR THE IMPOSITION OF PENALTY MAY BE PA SSED ON THE BASIS OF ASSESSMENT AS REVISED BY GIVING EFFECT TO SUCH ORDER OF THE COMMISSIONER (APPEALS) OR, THE APPELLATE TRIBUNAL O R THE HIGH COURT, OR THE SUPREME COURT OR ORDER OF REVISION UN DER SECTION 263 OR SECTION 264 : PROVIDED THAT NO ORDER OF IMPOSING OR ENHANCING OR REDUCING OR CANCELLING PENALTY OR DROPPING THE PROCEEDINGS FOR THE IMPOSITION OF PENALTY SHALL BE PASSED ( A ) UNLESS THE ASSESSEE HAS BEEN HEARD, OR HAS BEEN G IVEN A REASONABLE OPPORTUNITY OF BEING HEARD; ( B ) AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF TH E MONTH IN WHICH THE ORDER OF THE COMMISSIONER (APPEALS) OR THE APPELLAT E TRIBUNAL OR THE HIGH COURT OR THE SUPREME COURT IS RECEIVED BY THE CHIEF COMMISSIONER OR THE COMMISSIONER OR THE ORDER OF RE VISION UNDER SECTION 263 OR SECTION 264 IS PASSED: PROVIDED FURTHER THAT THE PROVISIONS OF SUB-SECTION (2) OF SECTION 274 SHALL APPLY IN RESPECT OF THE ORDER IMPOSING OR EN HANCING OR REDUCING PENALTY UNDER THIS SUB-SECTION.] 4 [(2) THE PROVISIONS OF THIS SECTION AS THEY STOOD I MMEDIATELY BEFORE THEIR AMENDMENT BY THE DIRECT TAX LAWS (AMEN DMENT) ACT, 1987 (4 OF 1988), SHALL APPLY TO AND IN RELATI ON TO ANY ACTION INITIATED FOR THE IMPOSITION OF PENALTY ON OR BEFOR E THE 31ST DAY OF MARCH, 1989.] 5 [ EXPLANATION. IN COMPUTING THE PERIOD OF LIMITATION FOR THE PURPOSES OF THIS SECTION, ( I ) THE TIME TAKEN IN GIVING AN OPPORTUNITY TO THE AS SESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 ; ( II ) ANY PERIOD DURING WHICH THE IMMUNITY GRANTED UND ER SECTION 245H REMAINED IN FORCE; AND 4 ( III ) ANY PERIOD DURING WHICH A PROCEEDING UNDER THIS C HAPTER FOR THE LEVY OF PENALTY IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT, SHALL BE EXCLUDED.]] THE AFORESAID SECTION SPEAKS ABOUT BAR OF LIMITATIO N FOR IMPOSING PENALTY. AS PER SUB-CLAUSE (C ) (HIGHLIGHTED PORTI ON ABOVE), THE PROCEEDINGS OF IMPOSITION OF PENALTY ARE TO BE COMP LETED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE A CTION FOR IMPOSITION OF PENALTY WAS INITIATED. IN THE PRESENT APPEAL, THE ASSESSMENT WAS COMPLETED ON 24.11.2008 WHEREAS THE PENALTY WAS IMPOSED VIDE ORDER DATED 26.6.2009. AS PER THE AFORESAID PROVISION, THE LAST DATE FOR PASSING THE PENALTY OR DER WAS 31.3.2009. HOWEVER, THIS GROUND WAS NOT RAISED BEF ORE THE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). I, T HEREFORE, ALLOW THE AFORESAID GROUND TO BE RAISED BEING LEGAL GROUND BUT KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE AN D ALSO IN THE INTEREST OF BOTH THE PARTIES, SET ASIDE THE IMPUGNE D ORDER AND REMAND THE MATTER TO THE FILE OF THE THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION IN ACCO RDANCE WITH LAW FOR WHICH DUE OPPORTUNITY BE PROVIDED TO THE AS SESSEE, THEREFORE, THIS APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES ONLY. 5 ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L EARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON IST APRIL, 2010. SD/- (JOGINDER SINGH) JUDICIAL MEMBER IST APRIL, 2010 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE *DBN/