VIRENDRA & COMPANY, MUMBAI V. ACIT CIR 17(1), MUMBAI

ITA 1799/MUM/2010

• Counselvise Citation: 179919914 RSA 2010
• Duration Of Justice: 4 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 16-06-2014
• Assessment Year: 1994-1995
• Appeal Filed On: 08-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHR RAJNEESH K ARVIND
• Assessee Lawyers: MATHURIA
• Section: 246

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , ./I.T.A. NO. 1799/MUM/2010 ( / ASSESSMENT YEAR :1994-95) M/S VIRENDRA & COMPANY, 274, NEW DARUKHANA MAZGAON, MUMBAI-400010 / VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 17(1), 113, PIRAMAL CHAMBERS, PAREL, MUMBAI-400012. ( ! / APPELLANT) .. ( '# ! / RESPONDENT) ./ $% ./PAN/GIR NO. : AAAFV0875A ! & / APPELLANT BY : SHRI M S MATHURIA '# ! ' & /RESPONDENT BY : SHR RAJNEESH K ARVIND ( ) ' * + / DATE OF HEARING : 26.8.2014 ,- ' * + /DATE OF PRONOUNCEMENT : 27.8.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 23.12.2009 PASSED BY LD CIT(A)-29, MUMBAI AND IT RE LATES TO THE ASSESSMENT YEAR 1994-95. THE ASSESSEE IS AGGRIEVED BY THE DEC ISION OF LD CIT(A) (A) IN NOT HOLDING THAT THE PENALTY IS BARRED BY LIMITA TION AND (B) IN CONFIRMING THE PENALTY. 2. THE LD COUNSEL APPEARING FOR THE ASSESSEE SUBMIT TED THAT THE PENALTY ORDER IN THE INSTANT CASE WAS PASSED ON 30-03-2007 BY THE AO, AFTER THE RECEIPT OF ORDER PASSED BY THE TRIBUNAL IN THE QUANTUM APP EAL. THE ITAT PASSED ITS ORDER IN THE QUANTUM APPEAL ON 21.10.2005. HE SUBMITTED THAT HE HAS OBTAINED I.T.A. NO. 1799/MUM/2010 2 THE DETAILS RELATING TO THE SERVICE OF THE ORDER TO THE COMMISSIONER OF INCOME TAX FROM THE REGISTRY OF THE ITAT. REFERRING TO DOCUME NTS PLACED AT PAGES 55 TO 57 OF THE PAPER BOOK, THE LD A.R SUBMITTED THAT THE CO PY OF THE ORDER PASSED BY THE TRIBUNAL WAS SERVED ON THE CIT ON 09-12-2005. HE F URTHER SUBMITTED THAT THE PROVISIONS OF SEC. 275 MANDATES THAT THE PENALTY OR DER SHOULD BE PASSED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE O RDER OF ITAT WAS RECEIVED BY THE COMMISSIONER. HOWEVER, IN THE INSTANT CASE, THE PENALTY ORDER HAS BEEN PASSED ONLY ON 30-03-2007 BY THE ASSESSING OFFICER. ACCORDINGLY HE SUBMITTED THAT THE IMPUGNED PENALTY ORDER IS BARRED BY LIMITA TION AND IS LIABLE TO BE QUASHED. 3. HE FURTHER SUBMITTED THAT HE RAISED THIS LEGAL I SSUE BEFORE LD CIT(A) ALSO. REFERRING TO PAGE NO.2 OF THE ORDER OF LD CIT(A), T HE LD A.R SUBMITTED THAT THE FIRST APPELLATE AUTHORITY HAS ALSO AFFIRMED THAT TH E ORDER OF ITAT HAS REACHED TO CIT, CENTRAL IN DECEMBER, 2005. HOWEVER, THE LD CI T(A) TOOK THE VIEW THAT THE SAID DATE CANNOT BE RECKONED AS THE DATE FOR COMPUT ING THE TIME LIMIT. ACCORDING TO LD CIT(A), THE CIT (CENTRAL) DID NOT H AVE JURISDICTION OVER THE ASSESSEE AT THE TIME, WHEN THE ORDER WAS SERVED UPO N THE REVENUE. ACCORDING TO LD CIT(A), THE ORDER OF ITAT REACHED THE JURISDI CTIONAL CIT ONLY ON 03-10- 2006 AND ACCORDING TO HIM, THE TIME LIMIT SHOULD BE COMPUTED FROM THAT DATE ONLY. SINCE THE AO HAS PASSED THE PENALTY ORDER ON 30-03-2007, THE LD CIT(A) HAS HELD THAT THE IMPUGNED PENALTY ORDER IS NOT BAR RED BY LIMITATION. 4. THE LD A.R FURTHER SUBMITTED THAT THE REVENUE I S TAKING DIFFERENT STAND WITH REGARD TO THE DATE OF RECEIPT OF ORDER OF ITAT . HE SUBMITTED THAT THE RECORDS OF TRIBUNAL CLEARLY SHOW THAT THE ORDER WAS SERVED UPON THEM ON 09-12- I.T.A. NO. 1799/MUM/2010 3 2005. HOWEVER, THE LD CIT(A) STATES THAT THE ORDER WAS RECEIVED BY THE JURISDICTIONAL CIT ONLY ON 03-10-2006. HE SUBMITTE D THAT THE REVENUE HAS PREFERRED APPEAL BEFORE THE HONBLE HIGH COURT OF B OMBAY AGAINST THE ORDER PASSED BY THE TRIBUNAL FOR THE YEAR UNDER CONSIDERA TION IN QUANTUM APPEAL. BEFORE HONBLE HIGH COURT, THE REVENUE HAS STATED T HAT IT HAD RECEIVED THE COPY OF ORDER OF ITAT ON 20-09-2006. ACCORDINGLY, THE L D A.R SUBMITTED THAT THE REVENUE IS TAKING DIFFERENT STANDS ABOUT THE DATE O F RECEIPT OF ORDER OF ITAT. 5. WE HEARD LD D.R ON THIS PRELIMINARY ISSUE. HE C OULD NOT FURNISH ANY REPLY AS TO THE ACTUAL DATE OF RECEIPT OF ORDER OF ITAT. HOWEVER, THE COPY OF ACKNOWLEDGEMENT OBTAINED FROM THE REGISTRY CLEARLY SHOWS THAT THE ORDER OF ITAT WAS SERVED UPON THE CIT ON 09-12-2005. IN FAC T, THE LD CIT(A) ALSO ACKNOWLEDGES THAT THE SAID ORDER WAS SERVED ON CIT, CENTRAL ON 09-12-2005. 6. THE ASSESSEE HAS FURNISHED A COPY OF THE ORD ER DATED 21.10.2005 PASSED BY THE TRIBUNAL. WE NOTICE THAT THE TRIBUNAL HAS P ASSED A CONSOLIDATED ORDER IN RESPECT OF THE CROSS APPEALS. IN THE APPEAL FILED BY THE REVENUE (ITA NO.3723/MUM/98), THE APPELLANT IS SHOWN AS ASST. C OMMISSIONER OF INCOME TAX, CC-35, C-10, P.K. BHAVAN, BANDRA (E), MUMBAI-400 05 1. WE WERE INFORMED THAT THE CC-35 REFERS TO CENTRAL CIRCLE-35. THU S, WE NOTICE THAT THE APPELLANT WAS ACIT, CENTRAL CIRCLE BEFORE US AND HENCE THE RE GISTRY HAS RIGHTLY FORWARDED THE COPY OF THE ORDER TO THE CIT- CENTRAL. 7. THUS IT IS SEEN THAT THE ORDER OF THE ITAT W AS SERVED UPON THE CIT ON 09- 12-2005. THE PROVISIONS OF SEC. 275 PROVIDES FOR L IMITATION FOR PASSING OF THE PENALTY ORDERS. SUB. SEC. (1) OF SEC. 275 READS AS UNDER:- I.T.A. NO. 1799/MUM/2010 4 275 (1) NO ORDER IMPOSING A PENALTY UNDER THIS CHA PTER SHALL BE PASSED- (A) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OTHER OR DER IS THE SUBJECT-MATTER OF AN APPEAL TO THE COMMISSIONER (AP PEALS) UNDER SECTION 246 OR SECTION 246A OR AN APPEAL TO T HE APPELLATE TRIBUNAL UNDER SECTION 253, AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH AC TION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPL ETED, OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE APPELLATE TRIBUNAL IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER; IN THE INSTANT CASE, THE PENALTY ORDER IS REQUIRED TO BE PASSED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF TRI BUNAL WAS RECEIVED BY THE CIT. HENCE, THE PENALTY ORDER SHOULD HAVE BEEN PAS SED BY 30-06-2006. HOWEVER, THE ASSESSING OFFICER HAS PASSED THE PENAL TY ORDER ONLY ON 30-03-2007. HENCE THE PENALTY ORDER PASSED BY THE AO IS BARRED BY LIMITATION AND HENCE THE SAME IS LIABLE TO BE QUASHED. 8. IN VIEW OF THE FOREGOING, WE SET ASIDE THE ORDE R OF LD CIT(A) AND ALSO THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT O N 27TH AUGUST, 2014 . ,- ( . /0 1 2 27TH AUGUST, 2014 - ' 3) 4 SD SD ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER / ( ) MUMBAI: 27TH AUGUST,2014. . . ./ SRL , SR. PS I.T.A. NO. 1799/MUM/2010 5 ! ' / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. ( 6* ( ) / THE CIT(A)- CONCERNED 4. ( 6* / CIT CONCERNED 5. 78 3 '*9 , + 9 , / ( ) / DR, ITAT, MUMBAI CONCERNED 6. 3 : ) / GUARD FILE. ; ( / BY ORDER, TRUE COPY < $ (ASSTT. REGISTRAR) + 9 , / ( ) /ITAT, MUMBAI