Niraj Premchand Raka, Solapur V. Income-tax Officer, Ward - 1 (1), Solapur

ITA 740/PUN/2004

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3069 (ITAT-PUNE)
• Duration Of Justice: 14 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1992-1993
• Appeal Filed On: 10-05-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHABANA PARVEEN
• Assessee Lawyers: V L JAIN
• Keywords: Period of limitation; Time period of passing order
• Section: 246; 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER . / ITA NO.737/PUN/2004 / ASSESSMENT YEAR : 1992-93 EKATA PADAMCHAND RAKA, S.G. BHUTADA & ASSOCIATES CHARTERED ACCOUNTANTS, 104, SAKHAR PETH, SOLAPUR 413 005 VS. ITO, WARD -1(1), SOLAPUR . / ITA NO.738/PUN/2004 / ASSESSMENT YEAR : 1992-93 SARITA PADAMCHAND RAKA, S.G. BHUTADA & ASSOCIATES CHARTERED ACCOUNTANTS, 104, SAKHAR PETH, SOLAPUR 413 005 VS. ITO, WARD -1(1), SOLAPUR . / ITA NO.739/PUN/2004 / ASSESSMENT YEAR : 1992-93 NEELAM PREMCHAND RAKA, S.G. BHUTADA & ASSOCIATES CHARTERED ACCOUNTANTS, 104, SAKHAR PETH, SOLAPUR 413 005 VS. ITO, WARD -1(1), SOLAPUR . / ITA NO.740/PUN/2004 / ASSESSMENT YEAR : 1992-93 NIRAJ PREMCHAND RAKA, S.G. BHUTADA & ASSOCIATES CHARTERED ACCOUNTANTS, 104, SAKHAR PETH, SOLAPUR 413 005 VS. ITO, WARD -1(1), SOLAPUR ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 2 . / ITA NO.741/PUN/2004 / ASSESSMENT YEAR : 1992-93 MANISH PREMCHAND RAKA, S.G. BHUTADA & ASSOCIATES CHARTERED ACCOUNTANTS, 104, SAKHAR PETH, SOLAPUR 413 005 VS. ITO, WARD -1(1), SOLAPUR . / ITA NO.742/PUN/2004 / ASSESSMENT YEAR : 1992-93 AKASH VIJAYKUMAR RAKA, S.G. BHUTADA & ASSOCIATES CHARTERED ACCOUNTANTS, 104, SAKHAR PETH, SOLAPUR 413 005 VS. ITO, WARD -1(1), SOLAPUR . / ITA NO.743/PUN/2004 / ASSESSMENT YEAR : 1992-93 ABHISHEKH VIJAYKUMAR RAKA, S.G. BHUTADA & ASSOCIATES CHARTERED ACCOUNTANTS, 104, SAKHAR PETH, SOLAPUR 413 005 VS. ITO, WARD -1(1), SOLAPUR APPELLANT (S) BY SHRI V.L. JAIN RESPONDENT BY MS. SHABANA PARVEEN DATE OF HEARING 26-02-2019 DATE OF PRONOUNCEMENT 27-02-2019 ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 3 / ORDER PER R.S.SYAL, VP : THESE SEVEN APPEALS BY DIFFERENT BUT CONNECTED ASSESSE ES RELATING TO ASSESSMENT YEAR 1992-93, INVOLVE A COMMON ISSUE . WE ARE, THEREFORE, PROCEEDING TO DISPOSE THEM OFF BY THIS CON SOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IT IS A RECALLED MATTER IN AS MUCH AS THE EARLIER ORDER PA SSED BY THE TRIBUNAL WAS SUBSEQUENTLY RECALLED VIDE ITS ORDER DATED 08- 07-2008 IN M.A.NO.39/PN/2008 FOR DISPOSAL OF THE FOLLOWING GROUND: THE LD. CIT(A)-III, PUNE HAS ERRED IN COMING TO THE CONCLUSION THAT PENALTY ORDER OF THE AO PASSED U/S.271(1)(C) OF THE ACT IS LEGAL, NOT BAD IN LAW AND THUS TIME LIMIT PRESCRIBED U/S.275 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED THE ACT). 3. THE FACTS NECESSARY FOR THE DISPOSAL OF THE APPEAL IN EKATA PADAMCHAND RAKA ARE THAT THE TRIBUNAL PASSED THE QUANTUM O RDER IN RESPECT OF THESE SEVEN ASSESSES ON 13-11-2002 IN ITA NO.1084/PN/2001 ETC. THE AO PASSED PENALTY ORDER ON 30-09-2003 UPHOLDING PENALTY OF RS.49,831/-. THE ASSE SSEE CONTENDED BEFORE THE AO THAT THE ORDER DATED 13-11-2002 P ASSED BY THE TRIBUNAL IN QUANTUM PROCEEDINGS WAS RECEIVED BY THE ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 4 COMMISSIONER ON 13-12-2002. RELYING ON THE PROVISIONS OF SECTION 275(1)(A) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER ALSO CALLED `THE ACT), THE ASSESSEE CONTENDED THAT PENALTY ORDER COULD NOT BE PASSED AS HAVING BECOME TIME-BARRED. THE AO VID E PARA 6 OF HIS PENALTY ORDER OBSERVED THAT THE ORDER OF THE ITAT W AS RECEIVED BY CIT-IV, PUNE ON 13-05-2003, WHICH WAS, IN TU RN, RECEIVED BY HIM ON 14-05-2003 AND HENCE, THE PENALTY ORDER WAS NOT TIME-BARRED. NO RELIEF WAS ALLOWED IN THE FIRST APPEAL. THE ASSESSEE HAS APPROACHED THE TRIBUNAL CONTENDING THAT THE P ENALTY ORDER PASSED BY THE AO WAS TIME-BARRED. 4. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELE VANT MATERIAL ON RECORD. RELEVANT PART OF SECTION 275 CONTAINING BAR OF LIMITATION FOR IMPOSING PENALTIES, READS AS UNDER: - 275. (1) NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHALL BE PASSED (A) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OTHER ORDE R IS THE SUBJECT-MATTER OF AN APPEAL TO THE COMMISSIONER (APPEALS ) UNDER SECTION 246 OR SECTION 246A OR AN APPEAL TO THE APPELLATE TRIBUNAL UNDER SECTION 253, AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WH ICH ACTION FOR THE IMPOSITION OF PENALTY HAS 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 MAY BE, THE APPELLATE TRIBUNAL IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER : .. ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 5 5. CLAUSE (A) OF SECTION 275(1) OF THE ACT PROVIDES TH AT NO ORDER IMPOSING PENALTY UNDER THIS CHAPTER SHALL BE PASSED IN A CAS E WHERE THE RELEVANT ASSESSMENT YEAR IS SUBJECT MATTER OF APPE AL BEFORE THE TRIBUNAL, AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS IN THE COURSE OF WHICH ACTION FOR IMPOSING PENALTY HAS BEEN INITIATED, ARE COMPLETED, OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE TRIBUNAL IS RECEIVED BY THE PRINCIPAL COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER. IT IS A CASE WHERE THE PENALTY ORDER WAS PASSED AFTER THE EXPIRY OF TH E FINANCIAL YEAR IN WHICH THE ASSESSMENT ORDER WAS PASSED, WHICH ASP ECT IS NOT UNDER DISPUTE. THE ENTIRE CONTROVERSY ROTATES AROUND THE S ECOND LIMB OF SECTION 275(1)(A) WHICH GIVES A PERIOD OF SIX MONTH S FROM THE END OF THE MONTH IN WHICH THE ORDER OF TRIBUNAL IS RECEIV ED BY THE COMPETENT COMMISSIONER. THE TRIBUNAL PASSED QUANTUM ORDER ON 13-11-2002. THE CASE OF THE ASSESSEE IS THAT THE ORD ER OF TRIBUNAL WAS RECEIVED BY THE COMMISSIONER, KOLHAPUR, UNDE R WHOSE JURISDICTION THE AO IMPOSING PENALTY FALLS, ON 13-12-200 2. SINCE THE PENALTY ORDER WAS PASSED ON 30-09-2003, WHICH IS BEYOND A PERIOD OF SIX MONTHS FROM THE END OF DECEMBER, 2002, THE PROCEEDINGS BECAME TIME-BARRED. ON THE OTHER HAND, THE AO HAS MADE OUT A CASE THAT THE TRIBUNAL ORDER WAS RECEIVED BY THE ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 6 OFFICE OF CIT-IV, PUNE ON 13-05-2003. GOING BY THAT, THE PENALTY ORDER PASSED ON 30-09-2003 WAS WITHIN A PERIOD OF SIX MO NTHS FROM THE END OF MAY, 2013. 6. WE NEED TO DECIDE THE DATE ON WHICH THE ORDER PASS ED BY THE TRIBUNAL WAS SERVED ON THE COMPETENT COMMISSIONER. IN THIS REGARD, THE ASSESSEE HAS PLACED ON RECORD A LETTER DATED 18-03-2004 ISSUED BY THE ASSISTANT REGISTRAR, ITAT, PUNE STATING AS UNDER : KINDLY REFER TO YOUR LETTER DATED 09-03-2004 IN RELATION TO ITA NOS. 1022 TO 1029/2001 DECIDED ON 13-11-2002. 2. IN REPLY PLEASE NOTE THAT THE JURISDICTIONAL CIT, KOLHAPUR WAS SERVED WITH THE APPEAL ORDERS ON 13-12-2002 AS IS EVIDENT FROM THE ACKNOWLEDGEMENT FROM THE OFFICE OF THE COMMISSIONER OF INCOME TAX, KOLHAPUR. 7. IT IS APPARENT FROM THE ABOVE REPLY GIVEN BY THE ASSISTAN T REGISTRAR, ITAT, PUNE THAT THE QUANTUM ORDER PASSED BY THE TRIBUNAL ON 13-11-2002 WAS SERVED ON THE JURISDICTIONAL CIT , KOLHAPUR ON 13-12-2002 AS PER THE ACKNOWLEDGEMENT RECEIV ED FROM THE OFFICE OF CIT, KOLHAPUR. IT CAN BE SEEN FROM THE QUANTUM ORDER PASSED BY THE TRIBUNAL THAT A COPY OF THE ORDER WA S DIRECTED TO BE FORWARDED TO CIT, KOLHAPUR. IT IS NOT UNDERSTANDABLE AS TO HOW THE AO HAS BROUGHT IN FOCUS THE DATE OF SERVICE OF T HE QUANTUM ORDER PASSED BY THE TRIBUNAL ON CIT-IV, PUNE ON ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 7 13-05-2003. THE LD. AR SUBMITTED THAT THE DEPARTMENT CHANG ED THE JURISDICTION OF THE COMMISSIONERS OF INCOME-TAX AND IT WAS POSSIBLE THAT THE OFFICE OF CIT, KOLHAPUR WHO HAD THE ORIGIN AL JURISDICTION OVER THE ITO, WARD-1, SOLAPUR, WHO IMPOSED THE PENALTY, UNDERWENT CHANGE AND THE TRIBUNAL ORDER DATED 13- 11- 2002 MIGHT HAVE BEEN SENT BY THE CIT KOLHAPUR TO CIT-IV, PUNE ON 13-05-2003. THE LD. DR DID NOT DENY THIS FACT. IN OUR CONSIDERED OPINION, THE INTERNAL TRANSFER OF DOCUMENTS INCLUD ING THE TRIBUNAL ORDER FROM THE OFFICE OF CIT, KOLHAPUR TO CIT -IV, PUNE, CANNOT HAVE ANY BEARING ON THE DETERMINATION OF THE D ATE ON WHICH THE ORDER OF TRIBUNAL WAS SERVED ON THE COMPETENT COMMISSIONER HAVING JURISDICTION OVER THE CASE AT THE MATERIAL TIME. IT HAS BEEN FURTHER BROUGHT TO OUR NOTICE THAT THE ITO WARD 1(1), SOLAPUR ISSUED NOTICE FOR PENALTY U/S 271(1)(C) OF THE ACT ON 4.4.2003 FIXING THE DATE OF HEARING ON 17.4.2003, WHICH IS PRIOR TO 13.05.2003, BEING THE DATE OF THE ALLEGED SERVICE OF THE OR DER OF THE TRIBUNAL ON THE COMPETENT CIT. AS THE CIT, KOLHAPUR HAD TH E JURISDICTION OVER THE AO AND THE ORDER OF TRIBUNAL WAS SERV ED ON CIT, KOLHAPUR, ON 13.12.2002, IN OUR CONSIDERED OPINION, THE LIMITATION PERIOD HAS TO BE RECKONED FROM THE DATE OF SUCH S ERVICE. GOING BY THIS DATE OF SERVICE OF ORDER OF TRIBUNAL ON CIT, ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 8 KOLHAPUR, WE HOLD THAT THE PENALTY ORDER PASSED BY THE AO ON 30-09-2003 IS TIME-BARRED. 8. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF OTHER SIX APPEALS ARE SIMILAR TO THAT OF EK ATA P. RAKA. FOLLOWING THE VIEW TAKEN HEREINABOVE, WE HOLD THAT THE PENALTY ORDERS PASSED ON THESE SIX PERSONS WERE ALSO TIME -BARRED. 9. IN THE RESULT, ALL THE SEVEN APPEALS ARE ALLOWED ON THIS LEGAL ISSUE. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH FEBRUARY, 2019. SD/- SD/- (VIKAS AWASTHY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT PUNE; DATED : 27 TH FEBRUARY, 2019 ITA NOS.737 TO 743/PUN/2004 EKATA P. RAKA AND OTHERS 9 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-III, PUNE 4. 5. THE CIT-IV/V, PUNE , , A / DR A, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SEC RETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 26-02-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 27-02-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *