STRATCAP SECURITIES (I) P.L TD, MUMBAI V. ACIT CIR 4(2), MUMBAI

ITA 4144/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62508 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 31-05-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 19-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MURALI
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI AMIT SHUKLA, JM ITA NO.4144/MUM/2011 : ASST. YEAR 2005-2006 M/S.STRATCAP SECURITIES (INDIA) PVT. LTD. 44, STRATEGIC HOUSE, MINT ROAD FORT, MUMBAI 400 001. PAN : AAACS7113H. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 4(2) MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI VIMAL PUNMIYA RESPONDENT BY : SHRI M.MURALI DATE OF HEARING : 31.05.2012 DATE OF PRONOUNCEMENT : 06.06.2012 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE LEARNED CIT(A) ON 07.04.2011 IN RELATION TO THE ASSESSMENT YEAR 2005-2006. 2. APART FROM ASSAILING THE CONFIRMATION OF PENALTY BY THE LEARNED CIT(A) U/S 271(1)(C) OF THE ACT ON OTHER ISSUES, IT HAS BE EN ARGUED THROUGH GROUND NO.3 THAT THE LEARNED CIT(A) ERRED IN NOT APPRECIATING T HAT THE ASSESSING OFFICER IMPOSED PENALTY BEYOND THE STIPULATED TIME. THE LEA RNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER ITSELF IS TIME BARRED. ON A SPECIFIC QUERY, IT WAS ADMITT ED THAT THIS ISSUE WAS NOT TAKEN BEFORE THE LEARNED CIT(A). HOWEVER IT WAS ARGUED TH AT THE QUESTION OF LIMITATION BEING A QUESTION OF LAW, CAN BE TAKEN UP AT ANY STAGE OF THE PROCEEDINGS. WE ARE AGREEABLE WITH THIS CONTENTION OF THE LD. AR ON THE QUESTION OF RAISING OF THE GROUND OF LIMITATION FOR THE FIRST TIME BEFORE US FOR THE REASON THAT THE VERY ESSENCE OF THE PROCEEDINGS IS COMPLIANCE WITH THE TIME LIMITS SPECIFIED IN THE ACT FOR INITIATING THE PROC EEDINGS AND PASSING THE ORDER. IF THE PROCEEDINGS ARE INITIATED OR ORDER IS PASSED BE YOND THE SPECIFIED TIME, IT CANNOT BE SUSTAINED. IN VIEW OF THE FACT THAT THE Q UESTION OF LIMITATION IS A LEGAL ITA NO.4144/MUM/2011 M/S.STRATCAP SECURITIES (INDIA) PRIVATE LIMITED. 2 ISSUE, WE ARE OF THE CONSIDERED OPINION THAT THE SA ME IS LIABLE TO BE DECIDED AT THE VERY FIRST INSTANCE. 3. AS THE LEARNED CIT(A) HAS NOT DECIDED THIS A SPECT OF THE MATTER AND FURTHER THERE IS NO SUCH DISCUSSION IN THE PENALTY ORDER BY THE A.O. AS WELL, WE ARE OF THE CONSIDERED OPINION THAT IT WILL BE IN THE INTER EST OF JUSTICE IF THE MATTER IS RESTORED TO THE FILE OF A.O. FOR DECIDING THE QUEST ION OF LIMITATION AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN OTHER WORDS, IF THE ASSESSEE SUCCEEDS IN SATISFYING THE A .O. THAT THE PENALTY ORDER PASSED BY HIM WAS TIME BARRED, THE ORDER WOULD ITSE LF BE A NULLITY. IF HOWEVER THE ORDER IS FOUND TO HAVE BEEN PASSED WITHIN THE S TIPULATED TIME THEN THE ASSESSING OFFICER WILL DECIDE THE QUESTION OF PENAL TY AFRESH. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 06 TH DAY OF JUNE, 2012. SD/- SD/- (AMIT SHUKLA) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 06 TH JUNE, 2012. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-VIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. ITA NO.4144/MUM/2011 M/S.STRATCAP SECURITIES (INDIA) PRIVATE LIMITED. 3 TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.