College of Engineering and Technology, Bhubaneswar V. JCIT(TDS), Bhubaneswar

ITA 226/CTK/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4632 (ITAT-CUTTACK)
• Duration Of Justice: 4 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2014
• Court: TRIBUNAL
• Department Lawyers: RABIN CHOUDHURY
• Assessee Lawyers: K C JENA
• Keywords: Period of limitation; Reasonable cause; Difference of opinion; Change of opinion; TDS; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH , CUTTACK [ , . . , BEFORE SHRI SUNIL KUMAR YADAV , J M & SHRI B.P.JAIN , A M ./ ITA NO S . 226 TO 229 /CTK/201 4 ( [ [ / ASSESSMENT YEAR S : 2008 - 09 TO 2011 - 12 ) COLLEGE OF ENGINEERING AND TECHNOLOGY, KALINGA NAGAR, GHATIKIA, BHUBANESWAR VS. JCIT(TDS), BHUBANESWAR, ODISHA ./ ./ PAN/GIR NO. : BBNPO 02 34 D ( / APPELLANT ) .. ( / RESPONDENT ) [ /ASSESSEE BY : SHRI K.C.JENA /REVENUE BY : SHRI RA B IN CHOUDHURY / DATE OF HEARING : 2 8 TH MAY , 201 5 / DATE OF PRONOUNCEME NT 29 TH MA Y ,2015 / O R D E R PER SUNIL KUMAR YADAV (J.M) : TH ESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A ) - I, BHUBANESWAR FOR THE ASSESSMENT YEAR S 2008 - 09 TO 2011 - 2012 ON THE COMMON GROUNDS WHICH ARE AS UNDER : - 1. T HAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THE REASONABLE CAUSES AND BONAFIDES SHOWN BY THE DEDUCTOR IN FILING THE STATEMENTS UNDER SECTION 200(3) OF IT. ACT. 2. TH AT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT CONSIDERING THAT THE ORDER OF PENALTY DATED 30.05.2012 UNDER SECTION 272A(2)(K) OF I.T. ACT MADE BY THE JOINT COMMISSIONER OF INCOM E TAX (TDS) IS BARRED BY LIMITATION AND WITHOUT JURISDICTION AS SPECIFIED IN SECTION 275 OF INCOME TAX ACT. 3. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I SHOULD HAVE TAKEN A LIBERAL VIEW AS THE TAXES HAVE BEEN ITA NOS.226 - 229/14 2 DEPOSITED, IT IS A QUASI CRIMINAL PROCEEDING AND THE QUESTION OF MENS REA IS INVOLVED. 4. THE APPELLANT CRAVES TO LEAVE, ADD, MODIFY, ALTER OR AMEND THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE ASSESSEE HAD FILED THE QUARTERLY E - TDS STATEMENTS IN FORM NOS.24Q & 26Q FOR DIFFERENT QUARTERS FOR THE IMPUGNED FINANCIAL YEARS BUT DUE TO TECHNICAL PROBLEMS THERE WAS DELAY IN FILING OF E - TDS RETURNS . T HOUGH THE TDS WERE DEDUCTED AND DUE AMOUNT OF TAX WAS PAID TO THE DEPARTMENT . T HE AO HAS LEVIED THE PENALTY U/S.272A(2)(K) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) . T HE ASSESSEE HAS ALSO RAISED THE PR ELIMINARY OBJECTION WITH REGARD TO THE VALIDITY OF THE PENALTY ORDER AS IT IS BARRED BY LIMITATION. LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE PENALTY ORDER DATED 30 - 5 - 2012 PASSED U/S.272A(2)(K) OF THE ACT BY THE JOINT COMMISSIONER OF I NCOME TAX WITH THE SUBMISSION THAT THIS ORDER WAS RECEI VED BY THE ASSESSEE ON 3 - 8 - 2012. T HE SHOW CAUSE NOTICE FOR IMPOSITION OF PENALTY FOR THE IMPUGNED FINANCIAL YEARS WERE ISSUED ON 24 - 11 - 2011, THEREFORE, THE TIME LIMIT FOR PASSING THE PENALTY ORDER, ACC ORDING TO THE PROVISIONS OF SECTION 275(1)(C) OF THE ACT, WAS UPTO TO 31 - 5 - 2012. THOUGH THE ORDER WAS PASSED ON 30 - 5 - 2012, IT WAS RECEIVED BY THE ASSESSEE ON 3 - 8 - 2012. HE HAS ALSO DR AWN OUR ATTENTION TO THE ORDER RECEIVED BY THE ASSESSEE WITH THE SUBMISSIO N THAT IT WAS DISPATCHED TO THE ASSESSEE ON 20 - 7 - 2012 BY MEMO NO.1127 AS IT IS EVIDENT FROM THE PENALTY ORDER. THEREFORE, THE PENALTY ORDER IS BACK DATED AND IN FACT IT WAS PASSED IN THE MONTH OF JULY, ITA NOS.226 - 229/14 3 2012. HAD IT BEEN PASSED BY THE END O N 3 0 TH MAY, 2012, IT WOULD HAVE BEEN ISSUED TO THE ASSESSEE AT LEAST WITHIN FIRST WEEK OF JUNE, 2012 BUT THIS ORDER WAS ISSUED ON 20 - 7 - 2012, THEREFORE, IT IS APPARENT THAT THE ORDER IS BACK DATED AND WAS IN FACT PASSED AFTER THE PERIOD OF LIMITATION. HE ALSO PLACED A RELIA NCE UPON THE FOLLOWING JUDGMENTS IN SUPPORT OF HIS CONTENTIONS THAT THE DATE OF RECEIPT OF THE ORDER SHOULD BE TAKEN INTO ACCOUNT WITH REGARD TO THE DATE OF PASSING OF THE PENALTY ORDER : - I) B.J.SHELAT VS. STATE OF GUJURAT, AIR 1978 SC 1109; II) SHANTI L AL GODAWAT VS. ACIT, 126 TTJ(JODH) 135; III) ACIT VS. ORISSA STEVEDORES LTD., 16 ITR (TRIB) 431 (CTC); AND IV) ACIT VS. DR. TULSI PRASAD MOHAPATRA AND ANOTHER, 16 ITR (TRIB) 449 (CTC). 3. LEARNED DR, ON THE OTHER HAND, HAS SUBMITTED THAT REQUIREMENT O F LAW IS TO PASS AN ORDER DURING THE PERIOD OF LIMITATION. THERE IS NO REQUIREMENT OF LAW FOR SERVICE OF PENALTY ORDER UPON THE ASSESSEE WITHIN THE PERIOD OF LIMITATION. SINCE, THE PENALTY ORDER WAS PASSED WITHIN THE PRESCRIBED PERIOD , THE SAME CANNOT BE H ELD TO BE ILLEGAL BEING BARRED BY LIMITATION. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE AUTHORITIES BELOW, DOCUMENTS PLACED ON RECORD AND IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THERE IS NO DISPUTE WITH REGARD TO THE FACTS NARRATED BY LEAR NED COUNSEL FOR THE ASSESSEE. THOUGH THE PENALTY ORDER WAS PASSED ON 30 - 5 - 2012 BUT IT WAS SERVED UPON THE ASSESSEE ON 3 - 8 - 2012. FROM A CAREFUL PERUSAL OF THE PENALTY ORDER, WE FIND THAT THERE IS A NOTING ON THE TOP OF THE ORDER WITH REGARD TO MEMO NO. AND DATE. THE MEMO NO. IS MENTIONED AS ITA NOS.226 - 229/14 4 1127 AND DATE IS MENTIONED AS 20 - 7 - 2012, WHICH SHOWS THAT THE PENALTY ORDER WAS DISPATCHED ON 20 - 7 - 2012. DURING THE COURSE OF HEARING A SPECIFIC QUERY WAS RAISED FROM THE LEARNED DR TO EXPLAIN AS TO WH Y THE PENALTY ORDER PASSED ON 30 - 5 - 2012 WAS ISSUED TO THE ASSESSEE ON 20 - 7 - 2012. LD. DR COULD NOT FURNISH ANY SATISFACTORY EXPLANATION TO THIS QUERY. IN THE ABSENCE OF ANY PLAUSIBLE EXPLANATION FROM THE DEPARTMENT, WE FIND FORCE IN THE CONTENTION OF THE ASSESSEE THAT H AD THE PENALTY ORDER BEEN PASSED ON 30 TH MAY, 2012, IT WOULD HAVE BEEN ISSUED TO THE ASSESSEE AT LEAST WITHIN A WEEK I.E. UPTO FIRST WEEK OF JUNE, 2012 BUT THIS ORDER WAS ISSUED ON 20 - 7 - 2012 . APPARENTLY IT APPEARS THAT THE PENALTY ORDER IS BACK DATED AND IN FACT IT MUST HAVE BEEN PASSED IN JULY, 2012. AS PER THE PROVISIONS OF SECTION 275(1)(C) OF THE ACT, NO ORDER IMPOSING PENALTY SHALL BE PASSED AFTER EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY WAS INITIATED. ADMITTED LY, THE SHOW CAUSE NOTICE WAS ISSUED ON 24 - 11 - 2011 AND THE PENALTY ORDER U/S.272(A)(2)(K) OF THE ACT WAS REQUIRED TO BE PASSED BY THE END OF 31 ST MAY, 2012 BUT AS OBSERVED IN FOREGOING PARAS, IT APPEARS TO US THAT PENALTY ORDER WAS PASSED IN THE MONTH OF J ULY, 2012, WHICH IS AFTER THE EXPIRY OF A PERIOD OF LIMITATION . 5. WE HAVE ALSO CAREFULLY PERUSED THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF B.J.SHELAT VS. STATE OF GUJURAT (SUPRA), IN WHICH IT HAS BEEN HELD THAT , THE ORDER OF ANY AUTHORITY CANN OT BE SAID TO BE PASSED UNLESS IT IS IN SOME WAY PRONOUNCED OR PUBLISHED OR THE PARTY ITA NOS.226 - 229/14 5 AFFECTED HAS THE MEANS OF KNOWING IT. IT IS NOT ENOUGH IF THE ORDER IS MADE SIGNED AND KEPT IN THE FILE, BECAUSE SUCH ORDER MAY BE LIABLE TO CHANGE THE HANDS OF THE AUTHO RITY WHO MAY MODIFY IT, OR EVEN DESTROY IT, BEFORE IT IS MADE KNOWN, BASED ON SUBSEQUENT INFORMATION, THINKING OR CHANGE OF OPINION. TO MAKE THE ORDER COMPLETE AND EFFECTIVE, IT SHOULD BE ISSUED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHORITY CONCERNED, F OR ANY POSSIBLE CHANGE OR MODIFICATION THEREIN. THIS SHOULD BE DONE WITHIN THE PRESCRIBED PERIOD, THOUGH THE ACTUAL SERVICE OF THE ORDER MAY BE BEYOND THAT PERIOD. 6. IN THE CASE OF ORISSA STEVEDORES LTD. (SUPRA), THE TRIBUNAL HAS HELD THAT SINCE THERE W AS A DELAY OF 85 DAYS IN SERVING THE ASSESSMENT ORDERS ALONG WITH DEMAND NOTICES THE ASSESSMENT ORDERS FOR THESE YEARS WERE BARRED BY LIMITATION AND ACCORDINGLY THEY WERE INEFFECTIVE AND NON EST IN LAW. AND IN THE CASE OF DR. TULSI PRASAD MOHAPATRA AND ANO THER (SUPRA), THE CUTTACK BENCH OF THE TRIBUNAL HAS COME TO THE CONCLUSION THAT COMMUNICATION IS A CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECTIVE. THE DEMAND NOTICE AND ASSESSMENT ORDERS IN THE PRESENT CASE WERE SERVED ON THE SAME DAY I.E MAY 10, 2010 AFTER ABOUT 130 DAYS THOUGH THEY WERE PURPORTEDLY MADE ON DECEMBER, 31, 2009. THE ORDER WAS BARRED BY LIMITATION. 7 . FOLLOWING THE VIEW TAKE N IN THE AFORESAID CASES, WE ARE OF THE CONSIDERED OPINION THAT IN THE INSTANT CASE , THOUGH IT IS CLA IMED BY THE REVENUE THAT PENALTY ORDER WAS PASSED WITHIN THE PERIOD OF LIMITATION I.E. BEFORE 31 ST MAY,2012 , BUT APPARENTLY IT APPEARS THAT THE PENALTY ORDER WAS ITA NOS.226 - 229/14 6 NOT PASSED AS STATED BY THE REVENUE. HAD IT BEEN PASSED ON 3 0 TH MAY, 2012, IT WOULD HAVE BEEN ISSUED TO THE ASSESSEE AT LEAST WITHIN A WEEK BUT THIS ORDER WAS ISSUED ON 20 - 7 - 2012 . TH EREFORE, WE ARE OF THE VIEW THAT IT MIGHT HA VE BEEN PASSED IN JULY, 2012. ACCORDINGLY, WE HOLD THAT THE PENALTY ORDER IS BARRED BY LIMITATION , AND THEREFORE, IT IS INVA LID AND VOID AB INITIO . ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY SO IMPOSED BY THE REVENUE AUTHORITIES IN ALL THESE CASES. 8 . IN THE RESULT, ALL APPEAL S OF THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 / 05 / 201 5 . SD/ - SD/ - ( . . ) (B. P. JAIN) ( ) (SUNIL KUMAR YADAV) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 29 /0 5 / 201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, CUTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT , CUTTACK 6. [ / GUARD FILE. //TRUE COPY//