SUPARSHWA CONSTRUCTIONS, MUMBAI V. ADDL CIT RG 6, MUMBAI

ITA 3083/MUM/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3455 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2002-2003
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Search and seizure; Period of limitation; Reasonable cause; Assessment record; Time period of passing order
• Section: 273B; 143(3); 153A; 271D; 271E; 68

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL E BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 3083/MUM/2014 (ASSESSMENT YEAR 2002-03 ) ITA NO. 3084/MUM/2014 (ASSESSMENT YEAR 2005-06 ) M/S SUPARSHWA CONSTRUCTIONS, GROUND FLOOR, VEETRANG CHAMBERS, CAWASJI PATEL STREET, FORT, MUMBAI-400001 . PAN: AACFS6283R VS. ADDL.CIT, CENTRAL RANGE-6, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : MS. DINKLE HARIA (AR) RESPONDENT BY : SHRI D.G. PANSARI (DR) DATE OF HEARING : 26.04.2019 DATE OF PRONOUNCEMEN T : 30.04.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE TWO APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A)- 38, MUMBAI DATED 26.02.2014 FOR ASSESSMENT YEAR 200 2-03 & 2005-06. THE ASSESSEE HAS RAISED CERTAIN COMMON GROUND OF AP PEAL FOR BOTH THE ASSESSMENT YEARS, FACTS FOR BOTH THE YEARS ARE ALMO ST IDENTICAL EXCEPT VARIATION OF FIGURES, THEREFORE, WITH THE CONSENT O F PARTIES BOTH THE APPEALS WERE CLUBBED, HEARD AND ARE DECIDED BY A CONSOLIDAT ED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. FOR APPRECIATION OF FACT F OR ASSESSMENT YEAR 2002-03 ARE TAKEN AS A LEAD CASE. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: THE LEARNED CIT(A) ERRED ON FACTS, IN LAW AND UNDER THE CIRCUMSTANCES IN:- ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 2 A) CONFIRMING THE PENALTY LEVIED U/S 271D AND U/S 2 71E OF INCOME TAX ACT OF FOR THE AY 2002-2003 U/S.271D OF RS.6,50,000/- B) FAILING TO COMPREHEND THAT THE TRANSACTIONS BETW EEN THE PARTIES RESULTING INTO RECEIPT OR PAYMENT IN CASH ARE NOT TRANSACTION S OF LOANS OR DEPOSIT AND THEREFORE THE PROVISIONS OF SEC.269SS & 269T ARE NO T ATTRACTED. C) FAILING TO COMPREHEND THAT PROVISIONS OF SEC.269 SS & 269T WERE INTRODUCED IN THE INCOME TAX ACT FOR SPECIFIC PURPO SES AND WHEN SUCH ARE NOT THE INTENTIONS THAN THE PROVISIONS OF SEC.273B WHIC H SPEAKS OF REASONABLE CLAUSE FOR NOT LEVYING PENALTY HAS TO BE LIBERALLY CONSTRUED AND FOR TECHNICAL BREACH, IF ANY THE APPELLANT CANNOT BE VISITED WITH SUCH HUGE PENALTY. D) THAT THE PREVALENCE OF REASONABLE CAUSE CANNOT B E OVERLOOKED BY APPLYING HYPER TECHNICAL GROUNDS AND PENALTY CANNOT BE LEVIE D WHEN THE TRANSACTIONS ARE FOUND TO BE GENUINE LEADING TO NO OTHER ADDITIO NS ON THAT ACCOUNT UNDER THE INCOME TAX ACT, 1961. E) THAT THE VARIOUS TRANSACTIONS ENTERED INTO BY TH E APPELLANT WHICH HAS GIVEN RISE TO PENALTY U/S. 2710 & 271 E OF INCOME TAX ACT ARE NOT AT ALL DISBELIEVED OR HELD AS NON-GENUINE. F) GENUINE BUSINESS TRANSACTION ENTERED BY APPLICAN T WITH ASSOCIATE CONCERNS HAVING REASONABLE CAUSE DOES NOT FALL WITHIN THE AM BIT OF PROVISIONS OF SECTION 269SS / 269T OF INCOME TAX ACT. THE APPELLANT SUBMITS THAT THE CIT(A) HAS LEVIED TH E PENALTY ON HYPER TECHNICAL GROUNDS AND THE TRANSACTION HAS NOT BEEN DISBELIEVED AND THAT DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE APPELLANT, IT HAS TO ENTER INTO SUCH TRANSACTION. IN VIEW THEREOF, THE PENALTY LEVIED U/ S 271D OF RS.6,50,000/- FOR AY 2002-2003 IS REQUIRED TO BE DELETED. 2. FURTHER, VIDE APPLICATION DATED 24.06.2017, THE ASS ESSEE HAS RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL: ADDITIONAL GROUND OF APPEAL 1. IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE PENALTY ORDER FRAMED BY THE ADDL. COMMISSIONER OF INCOME TAX, CEN TRAL RANGE - 6, MUMBAI, ['THE A.O.'], UNDER SECTION 271D & 271E OF THE INCOME TAX ACT, 1961 ['THE ACT'], IS BAD, ILLEGAL, VOID AND WITHOUT JURISDICTION AS THE SAME BEING TIME BARRED. ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 3 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNER, ENGAGED IN THE BUSINESS OF CONSTRUCTION AND BELONGS TO SANGHVI GRO UP. A SEARCH AND SEIZURE ACTION WAS CONDUCTED AT SANGHVI GROUP ON 30 .11.2007. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSMENT WAS COMPLETED U NDER SECTION 143(3) R.W.S. 153A ON 24.12.2009. THE ASSESSING OFFICER WH ILE PASSING THE ASSESSMENT ORDER MADE DISALLOWANCE ON ACCOUNT OF AD VERTISEMENT EXPENSES OF RS. 32,000/-. DURING THE ASSESSMENT, IT WAS NOTE D THAT ASSESSEE HAS AVAILED UNSECURED LOAN OF RS. 44,39,000/- FROM SANG HVI ENTERPRISES. IT WAS FURTHER NOTED BY ASSESSING OFFICER THAT ASSESSEE HA S TAKEN LOAN IN CASH ON THE FOLLOWING DATES: SR.NO. DATE AMOUNT (RS.) 1 16.05.2001 1,00,000 2 15.06.2001 1,00,000 3 23.06.2001 50,000 4 05.07.2001 1,00,000 5 15.07.2001 1,00,000 6 01.08.2001 1,00,000 7 05.08.2001 1,00,000 4. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS N OT COMPLIED WITH THE PROVISIONS OF SECTION 279SS, THEREFORE, LIABLE FOR PENALTY UNDER SECTION 271D. THE ASSESSING OFFICER MADE REFERENCE TO THE A DDITIONAL COMMISSIONER OF INCOME TAX (ADDL. C.I.T) CENTRAL CIRCLE-42, FOR TAKING NECESSARY ACTION. THE LD. ADDL. CIT ISSUED SHOW-CAU SE NOTICE TO THE ASSESSEE AS TO WHY THE PENALTY UNDER SECTION 271D S HOULD NOT BE IMPOSED. THE ASSESSEE FILED ITS REPLY DATED 25.10.2010 AND C ONTENDED THAT THE REPLY FURNISHED BEFORE DCIT-CC-41/ASSESSING OFFICER MAY B E CONSIDERED AS A ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 4 REPLY TO THE NOTICE. IN THE REPLY DATED 25.10.2010, THE ASSESSEE STATED THAT THE ASSESSEE-FIRM IS IN THE BUSINESS OF BUILDER AND DEVELOPER. THERE ARE SEVEN TRANSACTIONS ON CASH LOAN FROM SANGHVI ENTERP RISES AS MENTIONED IN THE SHOW-CAUSE NOTICE. THE ASSESSEE HAS RECEIVED CA SH LOAN FROM ITS GROUP CONCERN, WHICH ARE ALSO INVOLVED IN THE SAME BUSINE SS, HAVING COMMON PARTNER AND MANAGEMENT, COMMON ACCOUNTANTS AND COMM ON ADMINISTRATIVE FUNCTIONS. THE CASH LOAN WAS TAKEN D UE TO NECESSITY ARISING BY FIRM ON PARTICULAR DATE DUE TO SHORTAGE OF CASH AND TO BRIDGE THE GAP OF SAID SHORTAGE AND MAKING PAYMENT ON DAILY EXPENSES. ALL THE TRANSACTIONS WERE MADE OUT OF BUSINESS EXIGENCIES; THEREFORE, TH ERE WAS BONAFIDE CAUSE TO TAKE SUCH LOAN. THE ASSESSEE ALSO RELIED ON VARI OUS CASE LAWS AND STATED THAT PENALTY PROCEEDING MAY BE DROPPED. 5. THE REPLY OF ASSESSEE WAS NOT ACCEPTED BY ASSESSING OFFICER HOLDING THAT GENUINENESS OF TRANSACTION IS OF NO CONSEQUENCE. A NON-GENUINE CREDIT IN THE BOOKS OF ACCOUNT IS HIT BY SECTION 68 OF INCOME -TAX ACT. SECTION 269SS/T WERE INSERTED TO CURVE THE CIRCULATION OF B LACK MONEY AND TO CURVE THE TAX EVASION. THE ASSESSING OFFICER LEVIED THE P ENALTY OF EQUAL OF THE AMOUNT OF LOAN AVAILED BY THE ASSESSEE VIDE ITS ORD ER DATED 28.09.2012 PASSED UNDER SECTION 271D. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSESSING OFFICER WAS CONFIRMED. THUS, FURTHER AGGR IEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPE AL BEFORE US. ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 5 6. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (D R) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE A LSO DELIBERATED ON VARIOUS CASE LAWS RELIED BY LOWER AUTHORITIES AND L D. REPRESENTATIVE OF THE PARTIES. IN SUPPORT OF ADDITIONAL GROUND OF APPEAL, THE LD. AR OF THE ASSESSEE SUBMITS THAT SHE HAS RAISED ADDITIONAL GRO UND OF APPEAL WHICH IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE JURISDICTION. THE FACT RELATED TO RAISING THE ADDITIONAL GROUND OF APPEAL ARE ALREADY ON RECORD AND DOES NOT REQUIRE ANY FURTHER FACT OR EVIDENCE TO BR ING ON RECORD. THE ADDITIONAL GROUNDS OF APPEAL ARE EMANATING FROM THE RECORD OF LOWER AUTHORITIES. THE LD. AR OF THE ASSESSEE FURTHER SUB MITS THAT PENALTY ORDER FOR BOTH THE ASSESSMENT YEARS ARE THAT ILLEGAL AND WITHOUT JURISDICTION BEING BARRED BY LIMITATION PRESCRIBED UNDER SECTION 275 OF INCOME-TAX ACT. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT OPP OSITE PARTY WOULD NOT SUFFER ANY PREJUDICE, IF THEY HAVE MERIT IN THEIR C ASE. 7. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUBMI TS THAT THE PENALTY ORDER WAS PASSED WITHIN PRESCRIBED PERIOD OF LIMITATION. THE LD. DR FURTHER SUBMITS THAT NO SUCH GROUND OF APPEAL WAS RAISED BY FIRST APPELLATE AUTHORITY (FAA). 8. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES, CONSIDERING THE FACT THAT THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSE SSEE IS PURELY LEGAL IN NATURE AND DOES NOT REQUIRE TO BRING ANY ADDITIONAL FACT OR EVIDENCE ON ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 6 RECORD. ALL FACTS FROM ADJUDICATION OF THE ADDITION AL GROUNDS OF APPEAL ARE EMANATING FROM THE ORDER OF THE LOWER AUTHORITIES. THEREFORE, WE ADMIT THE ADDITIONAL GROUND OF APPEAL FOR ADJUDICATION. THE O BJECTION OF LD. DR FOR THE REVENUE THAT NO SUCH ADDITIONAL GROUND WAS RAIS ED BEFORE FAA HAS NO FORCE AS LEGAL ISSUE CAN BE RAISED WHICH GOES TO TH E ROOT OF THE CASE CAN BE RAISED AT ANY STAGE, THEREFORE, THE ADDITIONAL GROU ND OF APPEAL RAISED BY ASSESSEE IS ALLOWED. 9. IN SUPPORT OF ADDITIONAL GROUNDS OF APPEAL THE LD. AR OF THE ASSESSEE SUBMITS THAT ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S 153A WAS PASSED ON 24.12.2009. THE PENALTY PROCEEDING WAS INITIATED BY ADDL. CIT IN 2010. THE PENALTY ORDER WAS PASSED ON 28.09.2012, WHICH I S BEYOND THE PRESCRIBED PERIOD OF LIMITATION AS THE PENALTY ORDE R CANNOT BE PASSED AFTER EXPIRY OF FINANCIAL YEAR IN WHICH PENALTY PROCEEDIN GS WERE INITIATED OR SIX MONTH FROM THE END OF THE MONTH IN WHICH ACTION OF IMPOSITION OF PENALTY IS INITIATED WHICHEVER PERIOD EXPIRED LATER AS PRES CRIBED UNDER SECTION 275(1)(C) OF THE ACT. THE LD. AR FURTHER SUBMITS TH AT THOUGH THE ASSESSEE SOUGHT PERMISSION FOR INSPECTION OF ASSESSMENT ORDE R AS WELL AS PENALTY PROCEEDING RECORD, HOWEVER, DESPITE REPEATED PERSUA SION AND EFFORTS, THE ASSESSING OFFICER NEITHER ALLOWED THE INSPECTION OF THE RECORD NOR PROVIDED THE DATE OF INITIATION OF PENALTY PROCEEDING. THE L D. AR SUBMITS THAT ADMITTEDLY THE PENALTY PROCEEDING WERE INITIATED BY ADDL. CIT BEFORE 25.10.2010 AS THE ASSESSEE FILED ITS REPLY TO THE S HOW-CAUSE NOTICE ON ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 7 25.10.2010, WHICH THIS FACT IS DULY RECORDED BY ADD L. CIT IN PARA-3 OF ITS ORDER. THE PENALTY ORDER WAS PASSED ON 28.09.2012 W HICH IS BEYOND THE PRESCRIBED PERIOD OF LIMITATION AS PRESCRIBED UNDER SECTION 275(1)(C), THEREFORE, THE ORDER PASSED UNDER SECTION 271D/E DA TED 28.09.2012 IS BEYOND THE PRESCRIBED PERIOD OF LIMITATION. IN SUPP ORT OF HER SUBMISSION, THE LD. AR OF THE ASSESSEE RELIED UPON THE FOLLOWIN G DECISIONS: 1. PR.CIT V. MAHESH WOOD PRODUCTS P. LTD. [(2017) 394 ITR 312 (DELHI)]. 2. PR.CIT V JKD CAPITAL & FINLEASE LTD [(2015) 378 ITR 614 (DELHI)]. 3. CIT V. JITENDRA SINGH RATHORE [(2013) 352 ITR 327 ( RAJASTHAN)]. 4. CIT V. NARAYANI & SONG (P.) LTD. [(2016) 73 TAXMANN .COM 21 (CALCUTTA)]. 5. LODHA BUILDERS P. LTD. V. ACIT [2015] 34 ITR(T) 157 (MUM. TRIB.). 6. M.D.S UNIVERSITY V. ACIT [(2014) 49 TAXMANN.COM 297 (JAIPUR-TRIB.)]. 7. ACIT V. SMT. MEETU AGARWAL [(2015) 42 ITR(T) 520 (L UCKNOW-TRIB.). 10. IN ALTERNATIVE PROPOSITION, THE LD. AR OF THE ASSES SEE SUBMITS THAT PENALTY CANNOT BE LEVIED UNDER SECTION 271D AND OR SECTION 271E, IF THE ASSESSEE HAS SHOWN REASONABLE CAUSE AS PROVIDED IN SECTION 2 73B OF THE ACT. IN SUPPORT OF HER SUBMISSION, THE LD. AR RELIED UPON T HE FOLLOWING DECISIONS: 1. CIT V. SUNIL KUMAR GOEAL [(2009) 315 ITR 163 (PUNJ. & HAR.)]. 2. CIT V. MAHESHWARI NIRMAN UDYOG [(2008) 302 ITR 201 (RAJ.)] 3. CIT V/S SREE KRISHNA PROMOTERS & BUILDERS [2011] 16 TAXMANN.COM 138 (KARNATAKA). ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 8 4. CIT V. DECCAN DESIGNS (INDIA) P.LTD. [2012] 347 ITR 580 (MADRAS). 5. K.K. ENTERPRISES V. JCIT [(2014) 41 TAXMANN.COM 235 (MUMBAI-TRIB.)]. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. DURING THE HEARING OF THESE APPEALS ON 09.01.2018, THE LD. DR FOR THE REVENUE WAS DIREC TED TO CALL THE RECORD OF ASSESSMENT TO ASCERTAIN AS TO WHY THE PENALTY PROCE EDING UNDER SECTION 271B WAS INITIATED. HOWEVER, DESPITE THE REPEATED D IRECTION OF THE BENCH, THE LD. DR FAILED TO BRING THE ASSESSMENT RECORD. T HE ASSESSMENT RECORD WAS REQUIRED TO ASCERTAIN THE DATE OF REFERENCE FOR LEVYING PENALTY UNDER SECTION 271D AND OR SECTION 271E OF THE ACT AND THE ISSUANCE OF SHOW- CAUSE NOTICE FOR LEVYING THE PENALTY UNDER SECTION 271D AND OR SECTION 271E OF THE ACT. THE LD. DR INFORMED THAT HE HAS WR ITTEN A NUMBER OF LETTERS TO THE ASSESSING OFFICER. HOWEVER, NO RESPO NSE IS RECEIVED FROM ASSESSING OFFICER. SINCE THE REVENUE FAILED TO COMP LY WITH THE DIRECTION OF THE BENCH, THE BENCH LEFT NO OPTION EXCEPT TO PROCE ED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 12. THE ASSESSMENT ORDER UNDER SECTION 143 R.W.S. 153A WAS COMPLETED ON 24.12.2009. THE PENALTY ORDER PASSED UNDER SECTION 271D DATED 28.09.2012 REVEALS THAT A SHOW-CAUSE NOTICE WAS ISSUED BY ADDL . CIT AS RECORDED IN PARA-3 OF HIS ORDER. HOWEVER, NO DATE OF SHOW-CAUSE NOTICE IS RECORDED IN THE ORDER. IT IS FURTHER RECORDED IN PARA-3 OF THE ORDER THAT ASSESSEE ATTENDED THE PROCEEDING AND FILED THEIR SUBMISSION ON 25.10. 2010 BE TREATED AS REPLY ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 9 OF THE NOTICE. PERUSAL OF ASSESSMENT ORDER DATED 24 .12.2009 REVEALS THAT NO RECOMMENDATION FOR INITIATION OF PENALTY UNDER SECT ION 271D WAS RECORDED IN THE ASSESSMENT ORDER. WE ARE CONSCIOUS OF THE FA CT THAT THE ASSESSING OFFICER HAS NO POWER TO ISSUE THE NOTICE UNDER SECT ION 271D OR SECTION 271E, THEREFORE, THE ASSESSING OFFICER HAS TO REFER THE MATTER FOR INITIATION OF PENALTY TO JOINT COMMISSIONER. CAREFUL PERUSAL O F PENALTY ORDER PASSED UNDER SECTION 271D DATED 28.09.2012 REVEALS THAT IT WAS INITIATED BEFORE 25.10.2010. ADMITTEDLY, THE ORDER IS NOT PASSED WIT H EXPIRY OF FINANCIAL YEAR WHEN IT WAS INITIATED OR SIX MONTH FROM THE EN D OF MONTH WHEN IMPOSITION OF PENALTY WAS INITIATED. THE HONBLE DE LHI HIGH COURT IN PCIT VS. J.K.D CAPITAL & FINANCE LTD. (SUPRA) HELD THAT WHERE PENALTY ORDER UNDER SECTION 271E WAS PASSED AFTER EXPIRY OF FINAN CIAL YEAR IN WHICH QUANTUM PROCEEDINGS WERE COMPLETED AND ALSO BEYOND SIX MONTH FROM MONTH IN WHICH PENALTY PROCEEDINGS WERE INITIATED, SAME WAS BARRED BY LIMITATION PROVIDED UNDER SECTION 275(1)(C). FURTHE R, THE MUMBAI TRIBUNAL IN LODHA BUILDERS P. LTD. VS. ACIT (SUPRA) HELD THA T IN CASE OF LEVY OF PENALTY UNDER SECTION 271D/271E LIMITATION PERIOD W OULD BE COUNTED FROM DATE OF ASSESSMENT ORDER WITH ASSESSING OFFICER'S D ECISION TO MAKE REFERRAL TO HIS ADDL. CIT, WHO IS AUTHORIZED TO IMPOSE PENAL TY AND NOT FROM DATE OF ISSUE OF SHOW CAUSE NOTICE BY ADDL. CIT. WE HAVE AL SO NOTED THAT THE CO- ORDINATE BENCH OF TRIBUNAL IN ASSESSEES GROUP CASE IN SANGHVI PREMISES PVT. LTD. VS. ADDL. CIT IN ITA NO. 2397/MUM/2014 DA TED 27.08.2018 HELD ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 10 THAT THE SIMILAR PENALTY ORDER PASSED BY ASSESSING OFFICER/ADDL.CIT ON 28.09.2012 AS BARRED BY LIMITATION. 13. NOW COMING TO THE FACT OF THE PRESENT CASE, AS WE H AVE ALREADY NOTED THAT ASSESSMENT UNDER SECTION 143(3) R.W.S. 153A WAS COM PLETED ON 24.12.2009 AND THE PENALTY UNDER SECTION 271D WAS LEVIED BY AD DL. CIT ON 28.09.2012. THE REVENUE HAS FAILED TO BRING ANY MAT ERIAL ON RECORD THAT THE PENALTY WAS INITIATED SUBSEQUENT TO THE ASSESSMENT ORDER DATED 24.12.2009 OR THAT THE PENALTY ORDER PASSED UNDER SECTION 271D WAS PASSED WITHIN PRESCRIBED PERIOD AS PRESCRIBED UNDER SECTION 275(1 )(C) OF THE ACT FROM THE DATE OF INITIATION OF PENALTY. THEREFORE, THE PENAL TY ORDER IS PASSED BEYOND THE PRESCRIBED PERIOD OF LIMITATION AND THE SAME IS LIABLE TO BE SET-ASIDE. NO CONTRARY FACT, EVIDENCE OR LAW IS BROUGHT TO OUR NO TICE TO TAKE OTHER VIEW. IN THE RESULT, ADDITIONAL GROUND OF APPEAL RAISED BY A SSESSEE IS ALLOWED. 14. AS WE HAVE ALLOWED THE ADDITIONAL GROUND OF APPEAL, THEREFORE, THE DISCUSSION ON ALTERNATIVE SUBMISSION OF LD. AR OF T HE ASSESSEE THAT ASSESSEE HAS SHOWN SUFFICIENT CAUSE WITHIN THE MEANING OF SE CTION 273B AND ON ORIGINAL GROUND OF APPEAL HAVE BECOME ACADEMIC. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 3084/MUM/2014 FOR A.Y. 2005-06 16. THE ASSESSEE RAISED IDENTICAL GROUNDS OF APPEAL. TH E FACTS FOR THE YEAR UNDER CONSIDERATION ARE SIMILAR EXCEPT THAT THE PEN ALTY WAS LEVIED BY ASSESSING OFFICER UNDER SECTION 271E FOR REPAYMENT OF LOAN TO SANGHVI ITA NO. 3083 & 3084 MUM 2014-M/S SUPARSHW A CONSTRUCTIONS 11 PREMISES IN CASH. CONSIDERING OUR DECISION ON SIMIL AR FACT FOR ASSESSMENT YEAR 2002-03, THE APPEAL FOR THE YEAR UNDER CONSIDE RATION IS ALSO ALLOWED WITH SIMILAR DIRECTION. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALSO ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/04/2019. SD/- SD /- N.K. PRADHAN, PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 30.04.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR E BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI