Sh. Prashant Dutt Chaudhary, Panchkula V. DCIT, Panchkula

ITA 248/CHANDI/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90269 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 06-07-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 09-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JINTENDER KUMAR
• Assessee Lawyers: ATUL MANDHAR
• Keywords: Period of limitation; Assessment record; Time period of passing order
• Section: 143(3); 246; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES SMC CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT ITA NO. 246/CHD/2015 (ASSESSMENT YEAR: 2001-02) SMT.VIJAY DUTT CHAUDHARY, VS. THE D.C.I.T., HOUSE NO.162, SECTOR 2, PANCHKULA CIRCLE, PANCHKULA. PAN NO. AHFPC8225R ITA NO. 247/CHD/2015 (ASSESSMENT YEAR: 2001-02) SH.VIKRANT DUTT CHAUDHARY, VS. THE D.C.I.T., HOUSE NO.162, SECTOR 2, PANCHKULA CIRCLE, PANCHKULA. PAN NO. AHFPC8192B AND ITA NO. 248/CHD/2015 ASSESSMENT YEAR: 2001-02) SH.PRASHANT DUTT CHAUDHARY, VS. THE D.C.I.T., HOUSE NO.162, SECTOR 2, PANCHKULA CIRCLE, PANCHKULA. PAN NO. AELPD8640L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ATUL MANDHAR RESPONDENT BY : SHRI JINTENDER KUMAR, DR DATE OF HEARING : 22.07.2015 DATE OF PRONOUNCEMENT : 23.07.2015 2 O R D E R PER H.L.KARWA, VP : THESE THREE APPEALS FILED BY THE DIFFERE NT ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS), PANCHKULA, AL L DATED 30.12.2014 IN CONFIRMING THE PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) RE LATING TO ASSESSMENT YEAR 2001-02. IN ALL THE APPEALS, THE ISSUE IS COMMON AND, THEREFORE, THESE APPEALS WERE HEARD TOG ETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. SINCE THE FACTS AND CIRCUMSTANCES ARE IDENTICAL IN ALL THE APPEALS, I MAY REFER TO THE DISCUSSION IN T HE ORDERS OF THE INCOME TAX AUTHORITIES IN THE CASE OF SMT.VIJA Y DUTT CHAUDHARY IN ITA NO.246/CHD/2015. FOR THE ASSESSM ENT YEAR 2001-02, THE ASSESSEE FILED THE RETURN OF INCO ME ON 17.9.2007 DECLARING NIL INCOME IN RESPONSE TO THE N OTICE UNDER SECTION 148 OF THE ACT. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) R.W.S. 147 ON 22.11.2007 AT RS.12,23,334/- AFTER MAKING ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT (APPEALS) AND THE LEARNED CIT (APPEALS) VIDE HI S ORDER DATED 24.8.2009 DISMISSED THE APPEAL. THE ASSESSE E CAME UP IN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ITS ORDER DATED 29.4.2011 DISMISSED THE APPEAL OF THE ASSESSE E AND DECIDED THE ISSUE IN FAVOUR OF THE REVENUE. THE O RDER OF THE 3 TRIBUNAL WAS RECEIVED BY THE COMMISSIONER, PANCHKUL A ON 2.9.2011 AND THEREAFTER THE ASSESSING OFFICER LEVIE D PENALTY OF RS.7,33,761/- BEING THE AMOUNT OF TAX SOUGHT TO BE EVADED VIDE ORDER DATED 12.3.2012. THE ASSESSEE CHALLENG ED THE PENALTY ORDER IN APPEAL BEFORE THE LEARNED CIT (APP EALS), PANCHKULA ON THE GROUND THAT THE ORDER OF PENALTY I S TIME BARRED AS THE ORDER OF THE LEARNED CIT (APPEALS) WA S SERVED ON 18.9.2009 AND ONE YEAR FROM THE END OF FINANCIAL YE AR THEREOF EXPIRED ON 31.3.2011. HOWEVER, DURING THE APPELLAT E PROCEEDINGS BEFORE THE LEARNED CIT (APPEALS), THE A SSESSEE SUBMITTED THAT THE PENALTY ORDER DATED 12.3.2012 LE VYING PENALTY IS BARRED BY LIMITATION. THE ASSESSEE SUB MITTED THAT AGAINST THE QUANTUM ORDER DATED 18.9.2009 OF LEARNE D CIT (APPEALS), THE ASSESSEE PREFERRED AN APPEAL I.E. IT A NOS.978/CHD/2009 BEFORE THE TRIBUNAL AND APPEAL OF THE ASSESSEE TOGETHER WITH ITA NOS.979 & 980/CHD/2009 I .E. APPEALS PREFERRED BY SHRI VIKRANT DUTT CHAUDHARY AN D SHRI PRASHANT DUTT CHAUDHARY WERE DISPOSED OFF BY THE T RIBUNAL ON 29.4.2011. THE ASSESSEE ALSO SUBMITTED BEFORE THE LEARNED CIT (APPEALS) THAT THE PENALTY ORDER UNDER SECTION 271(1)(C) OF THE ACT WAS NOT PASSED BY THE ASSESSIN G OFFICER WITHIN A PERIOD OF SIX MONTHS FROM THE END OF THE M ONTH IN WHICH THE ORDER OF THE TRIBUNAL WAS RECEIVED BY THE CHIEF COMMISSIONER OF INCOME TAX IN THE QUANTUM PROCEEDI NGS. IT WAS ALSO STATED THAT THE ORDER PASSED BY THE TRIBUN AL DATED 29.4.2011 ANYHOW CANNOT BE SERVED LATE MORE THAN TW O MONTHS TO THE ASSESSING OFFICER. THEN ALSO THE PEN ALTY ORDER MUST BE PASSED BEFORE 31.12.2011. 4 3. THE LEARNED CIT (APPEALS) DISMISSED THE APPEAL ON LEGAL GROUND RAISED BY THE ASSESSEE, OBSERVING AS U NDER : 5.1 A PLAIN READING OF THE SECTION SHOWS THAT U/S 275(1) THE REQUIREMENT OF THE MAIN SECTION IS THAT WHEN AN ASS ESSMENT ORDER IS A SUBJECT MATTER OF APPEAL BEFORE THE CIT(A) THE N THE PENALTY ORDER SHOULD BE PASSED, WITHIN A PERIOD OF SIX MONTHS FRO M THE END OF THE MONTH IN WHICH THE ORDER OF THE C1T(A) IS RECEIVED B Y THE CCIT/ COMMISSIONER. THE PROVISO TO THIS SECTION WAS INSERT ED W.E.F. 01.06.2003, TO EXPAND THIS TIME PERIOD OF SIX MONTHS TO ONE YEAR IN CASES WHEREIN THE COMMISSIONER OF THE C1T(A) PASS ES AN ORDER ON AFTER 1 ST JUNE 2003 AND NO APPEAL IS FILED BEFORE THE TRIBUN AL, THE PROVISO DOES NOT DEAL WITH EASES WHERE THE APPEALS ARE PENDING BEFORE THE ITAT U/S 275 OF THE ACT. THAT LIMB OF SEC TION 275(1 )(A), WHICH FIXES THE TIME LIMIT OF SIX MONTHS FROM THE DATE OF RECEIPT OF ORDER OF THE ITAT BY THE CCIT, FOR PASSING AN ORDER O F PENALTY IS NOT DISTURBED IN ANY MANNER BY THE INSERTION OF THE PROVISO. IN THE PRESENT EASE, THE ORDER OF ITAT WAS RENDERED ON 29. 04.2011 AND THE ORDER PASSED BY THE AO LEVYING PENALTY WAS PASSE D ON 12.03.2012, I.E., PASSED AFTER MORE THAN 11 MONTH F ROM THE ORDER OF THE ITAT. THE APPELLANT RELIED ON THE JUDGMENT IN T HE CASE OF M/S RAYALA CORPORATION PVT. LTD. VS. UNION OF INDIA & OT HERS (2007) 288 1TR 452 (MAD.). 5.2 1 HAVE GONE THROUGH THE FACTS OF THE CASE, WRIT TEN SUBMISSION FILED BY THE APPELLANT AND ASSESSMENT RECORD. ON PERU SAL OF ASSESSMENT RECORD, IT IS NOTED THAT THE CIT(A) ISSUE D ORDER FOR APPEAL NO. 54/PKL/07-08 DATED 24.08.2009 WHICH WAS R ECEIVED BY THE AO ON 01.09.2009. AGAINST THE ORDER OF CIT(A ), THE APPELLANT PREFERRED AN APPEAL BEFORE HONBLE ITAT. THE HON'BL E ITAT ISSUED A COMBINED ORDER IN THE CASE OF SH. VIKRANT DUTT CHAU DHARY, MRS. VIJAY DUTT CHAUDHARY AND SH. PRASHANT DUTT CHAUDHAR Y FOR ITA NO. 978 TO 980/CHANDI/2009 FOR A.Y. 2001-02 ON 29.0 4.2011. THE ORDER OF HON'BLE ITAT WAS RECEIVED IN THE OFFICE OF C1T, PANCHKULA ON 02.09.2011. THEREAFTER, THE ORDER OF HON'BLE ITA T WAS FORWARDED TO AO BY ADDL.CIT, PANCHKULA ON 27.09.2011. THE COUNSEL FOR THE APPELLANT ALSO REPLIED THROUGH AN APP LICATION TO THE 5 AO THAT A MISCELLANEOUS APPLICATION HAS BEEN FILED BE FORE HON'BLE ITAT ON 12.09.2011. THESE FACTS SHOW THAT THE ORDER OF HON'BLE ITAT WAS RECEIVED IN THE OFFICE OF C1T, PANCHKULA I N THE MONTH OF SEPTEMBER, 2011. 5.3 THE TIME LIMIT FOR MAKING AN ORDER IMPOSING A P ENALTY IS GOVERNED BY THE PROVISIONS OF SECTION 275 OF THE ACT . IN CASE, THE RELEVANT ASSESSMENT ORDER IS SUBJECT MATTER OF AN A PPEAL BEFORE COMMISSIONER (APPEALS) OR APPELLATE TRIBUNAL THEN T HE PENALTY ORDER SHOULD BE PASSED WITHIN A PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF COMMISSIONER (APPEALS) OR APPELLATE TRIBUNAL IS RECEIVED BY THE CHIEF COMMISSIONER OR CO MMISSIONER. IN THE PRESENT CASE, THE ORDER DATED 29.04.2011 OF THE APPELLATE TRIBUNAL WAS RECEIVED BY COMMISSIONER ON 02.09.2011. THE LIMITATION PERIOD OF SIX MONTH STARTS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS RECEIVED. SO, THE LIMITATION EX PIRES ON 31.03.2012. THE AO HAS PASSED PENALTY ORDER ON 12.0 3.2012 AND ISSUED DEMAND NOTICE U/S 156 ON 13.03.2012. THEREFO RE, IT IS FOUND THAT THE PENALTY ORDER WAS PASSED WELL WITHIN THE PERIOD OF TIME LIMITATION. THUS, THE GROUND OF APPEAL IS DISMIS SED. 4. I HAVE HEARD SHRI ATUL MANDHAR, LEARNED COUNSEL FOR THE ASSESSEE. AT THE VERY OUTSET, HE SUBMITTED TH AT THE ONLY GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS THA T THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER IS TI ME BARRED AND, THEREFORE, THE LEARNED CIT (APPEALS) WAS NOT J USTIFIED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. HE FURTHER POINTED OUT THAT THE ASSESSEE HAS NOT CHALLENGED TH E IMPUGNED ORDER ON MERITS. TO THIS EFFECT, THE LEA RNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED A LETTER DATED 20.7. 2015, WHICH READS AS UNDER : 6 TO, DATED: 20/07/2015 THE ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, SECTOR 9-A, CHANDIGARH 160009. SUBJECT: IN THE CASE OF SMT. VIJAY DUTT CHAUDHARY, HOUSE NO. 162, SECTOR 2, PANCHKULA, HARYANA. [P.A.N. : AHFPC8225R] ASSESSMENT YEAR : 2001-02. APPEAL NO. : ITA NO. 246/CHANDI/2015. DATE OF HEARING : 20/07/2015. [SMC] SIR, KINDLY REFER TO THE CASE CITED ABOVE. IN THIS CASE I SHALL LIKE TO BRING TO YOUR KIND KNOWLEDGE THAT THE ONLY GROUND OF APPEAL INVOLVED I N THE PRESENT APPEAL IS W.R.T. PENALTY U/S 271(1)(C) BEING TIME BARRED, TO THE EXCLUSION OF AN Y OTHER GROUND/ISSUE. THIS IS FOR YOUR INFORMATION AND RECORD. THANKING YOU. YOURS FAITHFULLY, SD/- (ATUL MANDHAR) COUNSEL FOR THE ASSESSEE 5. SECTION 275(1)A) OF THE ACT RELATES TO BAR OF LIMITATION FOR IMPOSING PENALTY. SECTION 275(1)( A) OF THE ACT READS AS UNDER : 275(1) NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHA LL BE PASSED---- (A) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OTHER ORD ER IS THE SUBJECT- MATTER OF AN APPEAL TO THE COMMISSIONER (APPEALS) UNDE R SECTION 246 OR SECTION 246A OR AN APPEAL TO THE APPELLATE TRIBUNAL UN DER SECTION 253, AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY H AS BEEN INITIATED, ARE COMPLETED, OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMISSIONER (APPEALS) OR, AS THE CASE MA Y BE, THE 7 APPELLATE TRIBUNAL IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMM ISSIONER, WHICHEVER PERIOD EXPIRES LATER : 6. ADMITTEDLY, IN THIS CASE, THE ASSESSMENT ORDER WAS A SUBJECT MATTER OF APPEAL BEFORE THE I.T.A.T., AND, THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 275(1)(A) OF THE ACT, THE PENALTY ORDER WAS REQUIRED TO BE PASSED WITHIN A PE RIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE APPELLATE TRIBUNAL WAS RECEIVED BY THE CHIEF COMMIS SIONER OF INCOME TAX OR COMMISSIONER. IN THE INSTANT CASE, AS PER THE RECORD MAINTAINED BY THE TRIBUNAL, THE TRIBUNAL PAS SED THE ORDER IN THE QUANTUM APPEAL ON 29.4.2011 AND A COPY OF THE SAME WAS ISSUED AND SENT TO THE COMMISSIONER OF INC OME TAX, PANCHKULA ON 1.8.2011 BY REGISTERED PARCEL. ADMIT TEDLY, THE ORDER DATED 29.4.2011 OF THE TRIBUNAL WAS RECEIVED BY THE COMMISSIONER OF INCOME TAX, PANCHKULA ON 2.9.2011. THERE IS NO MATERIAL ON RECORD TO CONTROVERT THE ABOVE FA CTS. AS PER THE PROVISIONS OF SECTION 275(1)(A) OF THE ACT, TH E LIMITATION PERIOD OF SIX MONTHS STARTS FROM THE END OF THE MON TH IN WHICH THE ORDER WAS RECEIVED. THEREFORE, AS PER T HE PROVISIONS OF LAW, THE ASSESSING OFFICER WAS REQUIR ED TO PASS THE PENALTY ORDER ON OR BEFORE 31.3.2012. ADMITTED LY, THE ASSESSING OFFICER PASSED THE PENALTY ORDER ON 12.3. 2012 AND ISSUED DEMAND NOTICE UNDER SECTION 156 OF THE ACT O N 13.3.2012. IN VIEW OF THE ABOVE, I DO NOT FIND AN Y INFIRMITY IN THE ORDER OF THE LEARNED CIT (APPEALS) AND ACCOR DINGLY, I UPHOLD THE SAME. 8 7. NO OTHER ISSUE WAS RAISED OR ARGUED BEFORE ME. 8. IN THE RESULT, THE APPEAL IN ITA NO.246/CHD/201 5 IS DISMISSED. ITA NOS.247/CHD/2015 & ITA NOS.247/CHD/2015 9. IT IS RELEVANT TO OBSERVE HERE THAT THE FACTS A ND CIRCUMSTANCES OF THESE CASES ARE SIMILAR TO THAT OF SMT.VIJAY DUTT CHAUDHARY IN ITA NO.246/CHD/2015 AND THE FINDI NGS GIVEN IN ITA NO.246/CHD/2015 SHALL APPLY TO THESE C ASES ALSO WITH EQUAL FORCE. 10. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF JULY, 2015. SD/- (H.L.KARWA) VICE PRESIDENT DATED : 23 RD JULY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 9