Brajaraj Movies, Cuttack V. Addl. Range-2, Cuttack

ITA 461/CTK/2012

• Counselvise Citation: 46122114 RSA 2012
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 26-09-2012
• Court: TRIBUNAL
• Department Lawyers: N K NEB
• Assessee Lawyers: B K MAHAPATRA
• Keywords: Initiation of penalty proceedings

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO S . 461,462,463,464,465 AND 466/CTK/2012 / ASSESSMENT YEAR S 2005 - 06,2006 - 07,207 - 08,2008 - 09 AND 2010 - 11, BRAJARAJ MOVIES, HARIPUR ROAD, CUTTACK. - - - VERSUS - ADDL.CIT , RANGE 2, CUTTACK. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.K.MAHAPATRA, AR / FOR THE RESPONDENT: / SHRI N.K.NEB, DR / DATE OF HEARING: 19.11.2012 / DATE OF PRONOUNCEMENT: 14.12.2012 / ORDER . . . , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . ALL THESE APPEALS ARE FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDERS OF THE COMMISSIONER OF INCOME - TAX (APPEALS) DT. 2.7.2012 FOR AYS 2005 - 06, 2006 - 07,207 - 08,2008 - 09 AND 2010 - 11 WHEREIN HE HAS CONFIRMED THE LEVY OF PENALTY U/S.272A(2)(C) OF THE INCOME - TAX ACT,1961. 2. THE ASSESSEE HAS THE FOLLOWING COMMON ISSUES AS DETAILED HEREUNDER: 1. FOR THAT THE LEARNED C.I.T ( AP PEAL ) SHOULD NOT HAVE CONFIRMED THE PENALTY IMPOSED BY THE ADDITIONAL C.I.T RANGE - 2, CUTTACK ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. FOR THAT THE OBSERVATION OF THE LEARNED C.I.T (APPEAL ) THAT THE APPELLANT DURING THE COURSE OF THE APPEL LATE PROCEEDING REITERATED ONLY THE GROUNDS OF APPEAL FILED ALONG WITH FORM NO - 35 IS NOT CORRECT AND BORNE OUT OF THE RECORDS, AS EXHAUSTIVE WRITTEN SUBMISSION WAS FILED BEFORE HIM ON 19.05.2012 CITING VARIOUS CASE LAWS DECIDED IN FAVOUR THE APPELLANT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 3. FOR THAT THE IMPOSITION OF PENALTY WAS BARRED BY LIMITATION, AS SECTION 275 (1) (C) CLEARLY STIPULATES THAT NO ORDER IMPOSING PENALTY UNDER CHAPTER XXI SHALL BE PASSED IN ANY OTHER CASE, AFTER EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS IN COURSE OF WHICH ACTION FOR IMPOSITION OF PENALTY HAS BEEN INITIATED ARE CONTEMPLATED OR INITIATED BEFORE SIX I.T.A.NOS.461,462,463,464,465 AND 466/CTK/2012 2 MONTHS AS CONTEMPLATED BY THE 2 LIMB OF THE PROVISION, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 4 . FOR THAT EVEN ASSUMING BUT NOT ADMITTING THE PENALTY WAS CORRECTLY IMPOS ED BY THE ADDITIONAL CIT RANGE - 2, CUTTACK, AND THE DEFAULT TREATED AS A CONSCIOUS DISREGARD OF ITS STATUTORY OBLIGATION, THE APPELLANT SHOULD HAVE GIVEN THE BENEFIT OF THE PENAL PROVISION AND THE SAID DEFAULT SHOULD HAVE BEEN CALCULATED ONLY FROM THE DATE OF SERVICE OF NOTICE ISSUED U/S 285 B OF THE ACT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED BY THE AS SESSEE AND THEIR LEGAL IMPLICATIONS. 4. ON CAREFUL CONSIDERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL, THE UNDISPU TED FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE IS A FILM - PRODUCER. THE ADDL.CIT HAS ISSUED LETTER ASKING THE ASSESSEE FOR FIL ING THE STATEMENT DULY FILLED IN FORM NO.52A FOR THE PERIODS UNDER CONSIDERATION. THOUGH THE LETTER WAS ISSUED NOT IN THE NAME OF PROPER PERSON, THE ASSESSEE SUBMITTED FORM 52A THOUGH SUCH FILING OF THE FORM IS TIME BARRED IN TERMS OF SECTION 275(1)(C) OF THE I.T.ACT FOR THE FYS 2004 - 05 TO 2008 - 09. THE PENALTY PROCEEDINGS IN QUESTION WERE INITIATED AFTER A LONG GAP OF TIME AS THE LETTER OF THE ADDL.CIT IS DT.6.2.2010 AND THE ASSESSEE HAS FILED THE REQUIRED FORM 52A ON 15.3.2010. THE ASSESSEE HAS INTER ALIA CONTENDED BEFORE THE LOWER AUTHORITIES THAT THE INITIATION OF PENALTY PROCEEDINGS IS BARRED BY TIME AS THEY WERE STARTED AFTER LONG TIME FROM THE DATE OF COMPLETION OF THE ASSESSMENT PROCEEDINGS. APART FROM THAT IT WAS ALSO CONTENDED THAT THE ASSESSEE IS N OT KNOWN THE OBLIGATION CAS T ON IT BY THE STATUTE REGARDING THE FILING OF FORM 52A. THE AUTHORITIES HAVE LEVIED PENALTY U/S.271A(2)(C) OF THE I.T.ACT. HENCE, THE PRESENT APPEALS ARE FILED BY THE ASSESSEE. 5. DURING THE COURSE OF HEARING, THE ASSESSEE REITE RATED THE SUBMISSIONS WHAT WERE SUBMITTED BEFORE THE AUTHORITIES. APART FROM THAT THE ASSESSEE HAS RELIED ON THE DECISION OF COCHIN BENCH OF THE ITAT IN THE CASE O F NOBLE PICTURES V. JCIT (90 ITD 248) WHEREIN IT WAS HELD THAT WHEN THE PENALTY PROCEEDING WA S STARTED AFTER A LONG TIME OF ASSESSMENT PROCEEDINGS, IT COULD NOT BE SAID TO HAVE BEEN INITIATED DURING ASSESSMENT PROCEEDINGS NOR THEY WERE COMPLETED WITHIN STIPULATED TIME AND WERE, THEREFORE, BAD IN LAW. SO ALSO IT WAS HELD THAT WHEN THE ASSESSEE FILE D THE REQUIRED FORM 52A, PENALTY I.T.A.NOS.461,462,463,464,465 AND 466/CTK/2012 3 LEVIED COULD NOT SURVIVE. THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ON HAND IS AKIN TO THE FACTS IN THE CASE OF NOBLE PICTURES (SUPRA). HENCE, WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGNED PENALTY LEVIED AGAINST THE ASSESSEE ARE NOT SUSTAINABLE FOR LEGAL SCRUTINY AS THE FORM 52A WERE FILED AND MORE SO THE INITIATION OF PENALTY PROCEEDINGS ARE LONG AFTER COMPLETION OF THE ASSESSMENTS AND THEY WERE NOT INITIATED DURING THE ASSESSMENT PROCEEDINGS. WE, THEREFORE, SET ASI DE THE IMPUGNED ORDERS OF THE LEARNED CIT(A) AND CANCEL THE IMPUGNED PENALTY LEVIED FOR ALL THE AYS UNDER CONSIDERATION BY ALLOWING THE APPEALS OF THE ASSESSEE. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. S D/ - S D/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( ) DATE: 14.12.2012 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : BRAJARAJ MOVIES, HARIPUR ROAD, CUTTACK. 2 / THE RESPONDENT: ADDL.CIT, RANGE 2, CUTTACK. 3 . / THE CIT, 4 . ( )/ TH E CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFF IXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 7.12.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.12.2012 OT HER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COME S BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.12.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE O RDER ................ 9. DATE OF DESPATCH OF THE ORDER .. ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.