USHDEV COMMERCIAL SERVICES PVT. LTD., MUMBAI V. D,C,I.T.-7(3), MUMBAI

ITA 7569/MUM/2011

• Counselvise Citation: 756919914 RSA 2011
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 01-07-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 09-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SENTHIL KUMARAN
• Assessee Lawyers: VIJAY MEHTA
• Keywords: Period of limitation; Question of law; Corroborative evidences; Time period of passing order
• Section: 37

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - F BENCH. . , !'# !$%&' , %! () BEFORE S/SH.D.MANMOHAN, VICE-PRESIDEN T & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.7569/MUM/2011, ! ! ! ! * * * * / ASSESSMENT YEAR-2002-03 M/S USHDEV COMMERCIAL SERVICES P. LTD., NEW HERILEELA HOUSE, 6TH FLOOR, MINT ROAD, MUMBAI-400001 VS. DCIT 7(3), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI. PAN: AAACU0549B ( !+, / APPELLANT) ( -.+, / RESPONDENT) !/0 !/0 !/0 !/0 1 1 1 1 % %% % / ASSESSEE BY : SH.VIJAY MEHTA !$) 2 1 % / REVENUE BY : SHRI SENTHIL KUMARAN ! ! ! ! 2 22 2 0! 0! 0! 0! / DATE OF HEARING : 01-07-2014 3* ! 2 0! / DATE OF PRONOUNCEMENT : 03-09-2014 , 1961 2 22 2 !! !! !! !! 254(1) % %% % &040 &040 &040 &040 (%5 (%5 (%5 (%5 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM %! %! %! %! () () () () !$%&' !$%&' !$%&' !$%&' % %% % ! ! ! ! : CHALLENGING THE ORDER DT.09.09.2011OF THE CIT(A)-18 ,MUMBAI,ASSESSEE-COMPANY HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1.ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LAO OF PASSING ORDER LEVYING PENALTY ULS.271(1)(C) IGNORING THE FACT THAT TIME LIMIT FOR PASSING THE SAID ORDER HAS EXPIRED. ORDER PASSE D BEYOND TIME PERMISSIBLE UNDER THE ACT IS BAD IN LAW AND THE SAME NEEDS TO BE QUASHED. 2.WITHOUT PREJUDICE TO THE ABOVE AND WITHOUT ADMITT ING, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN CONFIRMING THE A CTION OF THE LAO OF LEVYING PENALTY U/S271(L)(C) TO THE EXTENT OF 100% BEING RS.374986/ -AS AGAINST 200% LEVIED BY THE LD.AO. LEVY OF PENALTY WITHOUT APPRECIATING THAT ASSESSEE NEITHER CONCEALED ANY FACTS NOR FURNISHED ANY INACCURATE PARTICULARS IS BAD IN LAW AND THE SAME N EEDS TO BE DELETED. 3.THE ASSESSEE COMPANY CRAVES LEAVE TO ADD, TO AMEN D, ALTER I DELETE AND I OR MODIFY THE ABOVE GROUND OF APPEAL ON OR BEFORE THE FINAL DATE OF HEA RING. 2. ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF INVESTM ENT, FINANCING, DISCOUNTING ETC.,FILED ITS RETURN OF INCOME ON 29.10.2002 DECLARING LOSS OF RS .10,57,330/-.ASSESSING OFFICER (AO) FINALISED THE ASSESSMENT U/S.143(3) OF THE ACT,ON 27.01.2005, DETERMINING THE TOTAL LOSS OF RS. 6,760/-. EFFECTIVE GROUND OF APPEAL PERTAINS TO IMPOSITION O F PENALTY U/S.271(1)(C) OF THE ACT.DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE H AD CLAIMED AN EXPENDITURE OF RS.10,50,578/- ON ACCOUNT OF DISCOUNTING CHARGES.HE DIRECTED THE A SSESSEE TO FILE DETAILS OF DISCOUNTING CHARGES. AFTER CONSIDERING THE REPLY OF THE ASSESSEE,THE AO ASKED IT TO FILE THE CONFIRMATION OF THE PARTY AND THE COPY OF THE AGREEMENT REQUIRING IT TO PAY D ISCOUNT CHARGES.THE ASSESSEE DID NOT PROVIDE THE NECESSARY DETAILS AND INFORMED HIM THAT THE PAR TY IN QUESTION,M/S.PROTECH CIRCUIT BREAKERS LTD.(PCBL),BAORDA HAD CLOSED DOWN ITS BUSINESS,THAT IT WAS THAT IT WAS PROVIDING THE AMOUNTS PAYABLE TO THE ON AN YEARLY BASIS, THAT THE BALANCE ON ACCOUNT OF DISCOUNTING CHARGES WAS RS.91.95 LAKHS,THAT IT WAS NOT IN A POSITION TO GIVE FURTHER EVIDENCE, THAT THE OFFICE WAS INVESTED WITH WHITE ENDS WHICH HAD DESTROYED THE ENTIRE DOCUMENTS.AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE THE AO HELD THAT ISSUE WAS A RECURRING SINCE AY 199 7-98, THAT THE CLAIM OF DISCOUNTING CHARGES HAD BEEN DISALLOWED,THAT THE AMOUNT STATED TO HAVE BEEN RECEIVED ORIGINALLY TOWARDS DISCOUNTING 2 ITA NO.7569/MUM/2011 M/S.USHDEV COMMERCIAL SERVICES P. LTD. CHARGES WAS UTILISED FOR PURCHASE OF SHARES OF USHD EV INTERNATIONAL LTD. (RS. 1.86 CRORES) AND SOME MUTUAL FUNDS.THE AO,REJECTING THE CLAIM MADE B Y IT,INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT.THE ASSESSEE FILED A REPLY ON 02.08.2005 STATING THAT IT WAS IN APPEAL BEFORE THE FAA AND THEREFORE PENALTY PROCEEDING SHO ULD BE KEPT IN ABEYANCE. THE FAA DISMISSED THE APPEAL FILED BY IT,VIDE HIS ORDER DATED 04.04.2 006. THE ASSESSEE AGITATED THE ISSUE BEFORE THE TRIBUNAL.VIDE ITS ORDER DATED 05.09.2008 (ITA NO. 4 156/MUM/2006) THE 'H' BENCH OF ITAT, MUMBAI DISMISSED THE APPEAL OF THE ASSESSEE AS WITH DRAWN BY IT. AFTER THE DISMISSAL OF THE APPEAL BY THE TRIBUNAL A FRESH OPPORTUNITY WAS GRANTED TO THE ASSESSEE BY THE AO,VIDE HIS LETTER DATED 06.12.2009. IT WAS SUBMITTED BEFORE HIM THAT IT HAD WITHDRAWN THE APPEAL FILED BEFORE THE TRIBUNAL BECAUSE THE RETURN ED INCOME AND THE ASSESSED INCOME WAS LOSS, THAT IN RESPECT OF AY 1999-2000 ITS APPEAL AGAINST THE PENALTY ORDER WAS ALLOWED BY THE FAA, THAT THERE WAS NO TAX LIABILITY.AFTER CONSIDERING THE RE PLY OF THE ASSESSEE,THE AO HELD THAT IN VIEW OF THE DECISION OF THE JUDGMENT OF HON'BLE SUPREME COU RT IN THE CASE OF GOLD COIN HEALTH FOODS P. LTD. PENALTY WAS LEVIABLE,THAT THE FAA HAD DISMISSE D THE APPEAL FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION FILED BY IT AGAINST THE ADDITIO N RELATING TO THE DISALLOWANCE MADE BY THE AO,THAT IT WAS MENTIONED BY THE FAA THAT AT NO STAG E THE ASSESSEE HAD FURNISHED THE SUPPORTING EVIDENCES FOR ITS CLAIM FOR DISCOUNTING CHARGES, TH AT THE IT HAD CONCEALED THE PARTICULARS OF INCOME OF RS.10.50 LAKHS FOR THE YEAR UNDER APPEAL, THAT I T WAS LIABLE FOR PENALTY U/S 271(1)(C) OF THE ACT, THAT THE TAX SOUGHT TO BE EVADED WAS RS. 3.74 LAKHS , THAT THE MINIMUM PENALTY LEVIABLE WAS RS. 3,74,986/- AND THE MAXIMUM PENALTY LEVIABLE WAS RS. 11.24 LAKHS.FINALLY,HE LEVIED PENALTY OF RS. 7,49,972/-,200% OF THE TAX SOUGHT TO BE EVADED. 2.1. AGAINST THE PENALTY ORDER OF THE AO,THE ASSESSEE PR EFERRED AN APPEAL BEFORE THE FIRST APPEAL AUTHORITY(FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE ASSESSMENT ORDER,HE HELD THAT THE OBJECTION RAISED BY THE ASSESSEE RELA TING TO LIMITATION/PASSING OF THE PENALTY ORDER BEYOND THE PERMISSIBLE LIMIT WAS NOT CORRECT AND TE NABLE,THAT THE ASSESSEE HAD FILED AN APPEAL TO THE ITAT,THAT THE APPEAL WAS DISMISSED ON 05.09.200 8,THAT IT HAD WITHDRAWN THE APPEAL,THAT THE LIMITATION WOULD START FROM 05.09.2008 ONLY,THAT TH E ORDER IMPOSING THE PENALTY HAD BEEN PASSED WITHIN THE STIPULATED TIME, PERMITTED UNDER THE ACT .HE FURTHER HELD THAT HIS PREDECESSOR HAD FOUND IT STRANGE THAT THE IDENTITY OF THE PARTIES WERE NO T KNOWN TO THE ASSESSEE TO WHOM PAYMENTS WERE STILL TO BE MADEAND AT NO STAGE THE ASSESSEE COULD FURNISH THE SUPPORTING EVIDENCE FOR ITS CLAIM OF DISCOUNTING CHARGES,THAT THE ASSESSEE WAS IN NO POSITION TO EXPLAIN AND SUBSTANTIATE ITS CLAIM OF DISCOUNTING CHARGES.FAA RELIED UPON THE JUDGMENT OF THE HONBLE SUPREME COURT DELIVERED IN THE CASE OF RELIANCE PETROPRODUCTS PVT.L,TD.(322ITR158) .HE ALSO HELD THAT THE ASSESSEE WAS IN NO POSITION TO SUBSTANTIATE THE CLAIM.HE CONFIRMED THE PENALTY IMPOSED BY THE AO.HOWEVER, HE DIRECTED THE AO IS TO IMPOSE THE PENALTY AT 100% OF THE TAX SOUGHT TO BE EVADED INSTEAD OF 200% AS IMPOSED BY HIM IN THE ORDER. 2.2. BEFORE US,AUTHORISED REPRESENTATIVE(AR) STATED THAT THE PENALTY ORDER WAS PASSED BEYOND THE TIME LIMIT PRESCRIBED BY THE ACT, THAT THE ACT DID NOT STIPULATE THAT AO SHOULD WAIT FOR THE ORDER OF THE TRIBUNAL FOR IMPOSING PENALTY, THAT AMENDMENT W AS BROUGHT TO CURTAIL THE TIME LIMIT, THAT IN THE BUDGET SPEECH THE FINANCE MINISTER(FM)HAD MENTI ONED ABOUT THE NEED TO BRING THE AMENDMENT,THAT A TASK FORCE HAD SUBMITTED A REPORT IN THIS REGARD,THAT BUDGET SPEECH OF THE FM HAD TO BE GIVEN DUE WEIGHTAGE WHILE DECIDING THE CA SES, THAT THE BACKGROUND MATERIAL HAS TO BE CONSIDERED FOR UNDERSTANDING THE AMENDMENT, THAT TH E EXPLANATION GIVEN BY THE ASSESSEE WAS NOT FOUND TO BE FALSE, THAT IT HAD MADE A CLAIM IN THE RETURN OF INCOME, THAT IT HAD DISCLOSED ALL THE FACTS IN EARLIER YEARS.HE REFERRED TO THE SECTIONS 143(2),115JB(VI),115(O)(VI)OF THE ACT AND STATED THAT PROVISO TO THE SECTION SHOULD BE CONSIDERED IN BACKGROUND OF THE SECTION REFERRED ABOVE.HE RELIED UPON THE DECISION OF K. P.VARGHESE(131 ITR 5 97) AND ORDERS OF JASBIRSINGH(ITA/694/ CHD/ 2010-AY.2004-05,-18.10.2010),BLOOSOMFLORICULTURE(13 4TTJ51),TARLOCHANSINGH&SONS-HUF) (114 TTJ 82),MAHINDRA AND MAHINDRA LTD.(313 ITR-AT, 263), BANSAL PARIVAHAN(INDIA)(P)LTD.HE ALSO REFERRED TO THE REPORT OF THE TASK FORCE ON DI RECT TAXES,CBDT CIRCULAR NO. 7 OF 2003 3 ITA NO.7569/MUM/2011 M/S.USHDEV COMMERCIAL SERVICES P. LTD. [EXPLANATORY NOTES ON FINANCE ACT, 2003] EXPLAINING AMENDMENT TO SECTION 275 RELATING TO TIME LIMIT FOR IMPOSING PENALTY(263ITR-ST.-117-118)],MEM ORANDUM EXPLAINING PROVISIONS IN THE FINANCE BILL,2003[260ITR-ST.-222,223]AND BUDGET SPE ECH OF THE FM. DEPARTMENTAL REPRESENTATIVE (DR) ARGUED THAT THE PE NALTY WAS IMPOSED WITHIN TIME,THAT THE ASSESSEE WAS QUESTIONING THE WISDOM OF TWO HIGH COU RTS,THAT THE HON'BLE COURT HAS SETTLED THE LAW,THAT THE PROVISO WAS TO EXPLAIN THE MAIN SECTIO N, THAT THE ASSESSEE DID NOT PRODUCE ANY DETAILS BEFORE THE AO OR THE FAA, THAT OTHER DOCUMENTS WERE NOT FURNISHED BY IT, THAT THE CLAIM MADE BY THE ASSESSEE WAS NOT GENUINE,THAT THERE WAS NOTHING IN THE SPEECH OF THE FM ABOUT THE TIME LIMIT, THAT IT HAD WITHDRAWN THE APPEAL FILED BEFORE THE T RIBUNAL, THAT IT HAD FILED INACCURATE PARTICULARS. HE RELIED UPON THE CASE OF RAYALA CORPORATION P. LT D.(288 ITR 452) OF HONBLE MADRAS HIGH COURT. IN THE REJOINDER THE AR STATED THAT THE IN T HE MATTERS OF RAYALA CORPORATION P. LTD.(SUPRA) AND MOHAIR INVESTMENT AND TRADING CO. P. LTD. (345 ITR 51) OF HONBLE HIGH COURTS HAD NOT CONSIDERED THE BUDGET SPEECH AND OTHER RELATED MATE RIAL. 2.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.THE UNDISPUTED FACTS OF THE CASE ARE THAT THE AO HAD MADE CERTAIN ADDITI ONS TO THE INCOME OF THE ASSESSEE,WHILE FINALSING THE ASSESSMENT,THAT THE APPEAL FILED BY T HE ASSESSEE WAS DISMISSED BY THE FAA,THAT THE ASSESSEE ITSELF WITHDREW THE QUANTUM APPEAL FILED B EFORE THE TRIBUNAL,THAT THE AO LEVIED PENALTY U/S.271(1)(C)OF THE ACT AND SAME WAS CONFIRMED BY T HE FAA,THAT THE ASSESSEE HAS RAISED THE ISSUE OF TIME LIMIT BEFORE US,THAT THE AR FAIRLY AGREED T HAT TWO OF THE HONBLE HIGH COURTS HAD DECIDED THE ISSUE AGAINST THE STAND TAKEN BY HIM,THAT ACCOR DING TO THE ASSESSEE THE HONBLE COURTS HAD NOT CONSIDERED THE SPEECH OF THE FM AND THE OTHER MATER IAL. HERE,WE WOULD LIKE TO MENTION THAT IN QUANTUM PROCE EDINGS THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE CLAIM MADE BY IT ABOUT THE PAYMENTS TO BE MADE. IT IS ALSO SURPRISING THAT THE PARTIES WHO HAD TO RECEIVE BACK THE SUMS HAD NOT APPROACHED THE ASS ESSEE TO RETURN THE AMOUNTS DUE FROM IT TILL THE DATE OF HEARING BEFORE US,THOUGH SUFFICIENT TIME HA D LAPSED.WITHOUT COMMENTING UPON THE ARGUMENT OF THE ASSESSEE OF DESTRUCTION OF DOCUMENT S BY THE WHITE ANTS,WE WOULD LIKE TO MENTION THAT THE PARTY WHO WAS DUE TO RECEIVE MONEY FROM TH E ASSESSEE HAD NOT APPROACHED IT FOR LAST SO MANY YEARS OR IT HAD NOT WRITTEN ANY LETTER TO PCBL ,BARODA.IT IS CLAIMED THAT THE ASSESSEE IS CREDITING THE ACCOUNT OF PCBL,BUT IT HAS NOT LED TH E EVIDENCE OF INFORMING PCBL.IT IS MENTION WORTHY THAT THE ASSESSEE HAD CLAIMED THAT IT HAD RE CEIVED A SUM OF RS.1.90 CRORES(APP.)FOR DISCOUNTING.FROM THE DETAILS FILED BY IT,ONE THING IS CLEAR THAT MONEY RECEIVED BY IT WAS UTILISED FOR PURCHASING SHARES OF USHDEV INTERNATIONAL.IN TH ESE CIRCUMSTANCES,THE CLAIM OF DISCOUNT CHARGES FALLS FLAT PRIMA FACIE.IT IS SURPRISING THA T A PERSON ADVANCING RS.1.90CRORE(APP.)HAS DECIDED TO FORGO ITS CLAIM.MAKING A CLAIM OF ANY EX PENDITURE IN ITSELF IS NOT SUFFICIENT.IT HAS TO BE PROVED BY SOME KIND OF EVIDENCE.IF THE ASSESSEE FAI LS TO DO SO,THEN IT EXPOSES ITSELF TO THE PROVISIONS OF SECTION 271(1)(C)OF THE ACT.IN THE CA SE UNDER CONSIDERATION,SIMILAR SITUATION HAD ARISEN.THE AO,AFTER CONSIDERING THE FACTS OF THE MA TTER FOR THE YEAR UNDER CONSIDERATION,HAD LEVIED THE PENALTY FOR FURNISHING INACCURATE PARTICULARS O F INCOME AND CONCEALING INCOME.AS THE QUANTUM APPEAL HAS NOT BEEN DECIDED ON MERITS BY THE TRIBUN AL,SO,WE WOULD NOT LIKE TO DISCUSS THE ISSUE IN DETAIL.BUT, WE WOULD DEFINITELY LIKE TO MEET ALL TH E ARGUMENTS RAISED BY THE ASSESSEE BEFORE US. 2.3.1. FIRST,WE WOULD DISCUSS THE ARGUMENT RAISED BY THE A SSESSEE ABOUT THE SPEECH OF THE FM.IN OUR OPINION THE SPEECH BY THE FM OR OTHER MATERIAL AT BEST CAN BE TAKEN HELP WHEN THERE IS AMBIGUITY ABOUT THE LEGAL POSITION.IN ONE OF EARLY CASES,DEALING WITH THE SUBJECT I.E.,IN THE MATTER OF SODRA DEVI (32 ITR 615),THE HONBLE APEX COURT H AD HELD THAT MISCHIEF RULE COULD BE APPLIED WHEN THE STATUTORY PROVISIONS WERE AMBIGUOUS OR IS CAPABLE OF MORE THAN ONE MEANING.IN THE CASE OF DELHI FLOUR MILLS CO. LTD.,THE HONBLE DELHI HIG H COURT(95ITR151)HAS DEALT WITH THE IMPORTANCE OF REPORTS OF ADMINISTRATIVE COMMITTEE A ND THE SPEECH OF THE FM,WHILE DEALING WITH THE PROVISIONS OF SECTION 24 OF THE INDIAN INCOME T AX ACT,1922.COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAD DRAWN THE ATTENTION OF THE HONBLE COU RT TO THE REPORT OF THE DIRECT TAXES ADMINISTRATION ENQUIRY COMMITTEE 1958-59,WHICH CONT AINED EXTRACTS FROM THE SPEECH OF THE FM 4 ITA NO.7569/MUM/2011 M/S.USHDEV COMMERCIAL SERVICES P. LTD. MADE IN PARLIAMENT WHILE PILOTING PROVISO (A) TO EX PLANATION 2 OF SECTION 24(1) OF THE ACT. DECIDING THE MATTER THE HONBLE COURT HELD AS UNDER : IT IS ONLY IN CASES WHERE THE LANGUAGE OF ANY SECT ION OF THE STATUTE IS VAGUE AND THE LANGUAGE IS CAPABLE OF BEING INTERPRETED IN DIFFERENT WAYS THAT A COURT MAY DERIVE SOME GUIDANCE FROM THE SPEECH OF THE MINISTER WHO WAS PILOTING THE PARTICU LAR PIECE OF LEGISLATION IN THE LEGISLATURE. IN OUR VIEW, THE LANGUAGE OF PROVISO (A) TO EXPLANATION 2 IS QUITE CLEAR AND WE NEED NOT, THEREFORE, SEEK ANY GUIDANCE IN THE INTERPRETATION OF THIS PROVISO FROM THE SPEECH OF THE FINANCE MINISTERADMINISTRATION ENQUIRY COMMITTEE. BUT IT IS NOT NECESSARY FOR US TO EXPRESS OUR VIEW REGARDING THE SAME, BECAUSE VIEWS EXPRESSED IN SUCH REPORTS NEED NOT NECESSARILY BE TAKEN AS REFLECTING THE INTENTION OF THE LEGISLATURE. IN FAC T, IT MAY WELL BE THAT, IF THE VIEWS EXPRESSED BY T HE COMMITTEE WERE NOT CLEARLY REFLECTED IN THE STATUTE , IT MAY BE UNDERSTOOD THAT THE LEGISLATURE DID NOT ACCEPT SUCH VIEWS. HONBLE JURISDICTIONAL HIGH COURT IN THE MATTER OF B.R. SOUND-N-MUSIC(173ITR433),HAS ALSO DEALT WITH THE SIMILAR SUBJECT,WHILE DEALING WITH THE PRO VISIONS OF SECTION 271(4A)OF THE ACT.THE VIEWS EXPRESSED BY THE HOBLE COURT ARE AS UNDER: IN INTERPRETING A SECTION OF THE ACT, THE STATEMEN T OF OBJECTS AND REASONS OR THE SPEECH OF THE FINANCE MINISTER SHOULD NOT BE LOOKED INTO, EXCEPT FOR THE LIMITED PURPOSE OF ASCERTAINING THE MISCHIEF WHICH THE ACT SEEKS TO REMEDY. IN THE CASE OF AMPRO FOOD PRODUCTS (215ITR904) THE HONBLE ANDHRA PRADESH HIGH COURT HAD ALSO DELIBERATED UPON THE ISSUE OF SPEECH OF THE FM WHILE DECIDING THE PROVISIONS OF SECTION 37 (3A) OF THE ACT.FOLLOWING IS THE RELEVANT PORTION O F THE JUDGMENT: IN ORDER TO UNDERSTAND THE PROVISION OF ANY ACT, R EFERENCE TO THE SPEECH MADE AT THE TIME OF INTRODUCTION OF THE BILL IS PERMISSIBLE ONLY WHEN T HE COURT FINDS THAT THE PROVISIONS OF THE ACT ARE VAGUE OR AMBIGUOUS. THE PROVISIONS OF SUB-SECTION ( 3A) OF SECTION 37 ARE NEITHER VAGUE NOR AMBIGUOUS AND HENCE THE FINANCE MINISTER'S SPEECH W HILE INTRODUCING SUB-SECTION (3A) OF SECTION 37 WILL NOT BE A GROUND TO HOLD THAT WHEN THE EXPEN DITURE SOUGHT TO BE DEDUCTED UNDER THE HEAD 'SALES PROMOTION' IS EXTRAVAGANT OR SOCIALLY WASTEF UL, THEN ONLY SECTION 37(3A) SHOULD BE APPLIED. IN THE MATTER OF BHANDARI MACHINERY CO.(P.) LTD.(23 1ITR294)THE HONBLE DELHI HIGH COURT FOUND THAT THAT THE TRIBUNAL ALLOWED RELIEF TO THE ASSESSEE,WITH REGARD TO THE PROVISIONS OF SECTION 40A(8)OF THE ACT,ON THE BASIS OF THE SPEECH OF THE FM.REVERSING THE DECISION HONBLE COURT HELD THAT THE SPEECH OF THE FINANCE MINISTER, THE NOTES ON CLAUSES AND THE CIRCULAR ISSUED BY THE COMPANY LAW BOARD,WERE ALL EXTERNAL AIDS TO INTERPR ETATION WHICH COULD NOT BE RESORTED TO WHEN THE LANGUAGE OF THE ENACTMENT WAS PLAIN AND UNAMBIG UOUS.SIMILAR VIEW WAS EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF SHANKAR ANARAYANA CONSTRUCTION CO.,WHEREIN IT WAS HELD (239ITR902)THAT THE PLAIN LANGUAGE OF A STATUT E COULD NOT BE AMENDED OR STRETCHED BY THE COURT,THAT IN THE ABSENCE OF AMBIGUITY IN A PROVISI ON THE STATEMENT OF OBJECTS AND REASONS OR THE SPEECH OF THE MINISTER COULD NOT BE USED AS AN AID TO THE INTERPRETATION OF A PROVISION. FINALLY,WE WOULD LIKE TO REFER TO THE JUDGMENT OF T HE HONBLE APEX COURT,THAT REITERATES THE PRINCIPLE THAT UNLESS AND UNTIL THERE IS ANY AMBIGU ITY IN THE PROVISIONS OF ANY ACT,ON EXTERNAL HELP SHOULD BE TAKEN AND THE ACT SHOULD BE READ AS IT IS .IN THE CASE OF PADMASUNDRA RAO,WHILE DECIDING THE ISSUE UNDER LAND ACQUISITION ACT,1894,THE HON BLE COURT(255ITR147)HAS HELD AS UNDER: THE COURT CANNOT READ ANYTHING INTO A STATUTORY PRO VISION WHICH IS PLAIN AND UNAMBIGUOUS. A STATUTE IS THE EDICT OF THE LEGISLATURE. THE LANGUA GE EMPLOYED IN A STATUTE IS THE DETERMINATIVE FACTOR OF LEGISLATIVE INTENT. THE FIRST AND PRIMARY RULE OF CONSTRUCTION IS THAT THE INTENTION OF THE LEGISLATION MUST BE FOUND IN THE WORDS USED BY THE LEGISLATURE ITSELF. THE COURT ONLY INTERPRETS THE LAW AND CANNOT LEGISL ATE. IF A PROVISION OF LAW IS MISUSED AND SUBJECTED TO THE ABUSE OF THE PROCESS OF LAW, IT IS FOR THE LEGISLATURE TO AMEND, MODIFY OR REPEAL IT, IF DEEMED NECESSARY. LEGISLATIVE CASUS OMISSUS CANN OT BE SUPPLIED BY JUDICIAL INTERPRETATIVE PROCESS. A CASUS OMISSUS CANNOT BE SUPPLIED BY THE COURT EXC EPT IN THE CASE OF CLEAR NECESSITY AND WHEN REASON FOR IT IS FOUND IN THE FOUR CORNERS OF THE S TATUTE ITSELF. A CASUS OMISSUS SHOULD NOT BE READIL Y INFERRED AND FOR THE PURPOSE ALL THE PARTS OF THE S TATUTE OR SECTION MUST BE CONSTRUED TOGETHER AND 5 ITA NO.7569/MUM/2011 M/S.USHDEV COMMERCIAL SERVICES P. LTD. EVERY CLAUSE OF A SECTION SHOULD BE CONSTRUED WITH REFERENCE TO THE CONTEXT AND OTHER CLAUSES THEREOF SO THAT THE CONSTRUCTION TO BE PUT ON A PAR TICULAR PROVISION MAKES A CONSISTENT ENACTMENT OF THE WHOLE STATUTE. THIS WOULD BE MORE SO IF A LITER AL CONSTRUCTION OF A PARTICULAR CLAUSE LEADS TO MANIFESTLY ABSURD OR ANOMALOUS RESULTS WHICH COULD NOT HAVE BEEN INTENDED BY THE LEGISLATURE. AN INTENTION TO PRODUCE AN UNREASONABLE RESULT IS NOT TO BE IMPUTED TO A STATUTE IF THERE IS SOME OTHER CONSTRUCTION AVAILABLE. WHERE TO APPLY WORDS LITERA LLY WOULD DEFEAT THE OBVIOUS INTENTION OF THE LEGISLATION AND PRODUCE A WHOLLY UNREASONABLE RESUL T THE COURT MUST DO SOME VIOLENCE TO THE WORDS SO AS TO ACHIEVE THAT OBVIOUS INTENTION AND PRODUCE A RATIONAL CONSTRUCTION. IN OUR OPINION,A BUDGET SPEECH IS ONLY AN INTRODUCT ORY STEP TO THE BILL IN PARLIAMENT AND THAT IN ITSELF IS NOT AN END,WHEREAS THE ACT OR THE PROVISI ONS OF THE ACT ARE THE FINAL PRODUCT OF THE EXERCISE CARRIED OUT BY THE LEGISLATURE AFTER THE B ILL IS DISCUSSED AT LENGTH AT THE FLOOR OF THE HOUS E AND AMENDED,IF REQUIRED.IF THE PROVISIONS OF THE AC T ARE SO CLEAR THAT THERE CANNOT BE TWO OPINIONS ABOUT THEM THEN TO GO BEHIND THEM AND TO REFER THE SPEECH OF THE FM IS ONLY AN ACADEMIC EXERCISE.IN THE CASE UNDER CONSIDERATION IT CANNOT BE HELD THAT THERE IS AMBIGUITY IN THE PROVISIONS OR THERE CAN BE TWO OPINIONS.WHILE DECIDING AN IDEN TICAL ISSUE IN THE CASE OF MOHAIR INVESTMENT AND TRADING CO. P. LTD.(SUPRA) THE HONBLE DELHI CO URT HAS MENTIONED THAT THE COUNSEL OF THE ASSESSEE HAD REFERRED TO PURPOSE OF THE AMENDMENT W AS TO ACCELERATE THE PROCEEDINGS.WE FIND THAT THE SIMILAR PHRASE IS USED IN THE RECOMMENDATION OF THE TASK FORCE.AFTER CONSIDERING THE SAID ARGUMENT,IF THE HONBLE COURT HAS HELD THE ISSUE AG AINST THE ISSUE THEN IN OUR OPINION THE ARGUMENT OF NON CONSIDERATION OF THE COMMITTEE REPO RT OR THE SPEECH IS OF NO HELP TO THE ASSESSEE. 2.3.2. IT WILL BE USEFUL TO DISCUSS THE CASE OF MOHAIR INV ESTMENT AND TRADING CO. P. LTD.(SUPRA).IN THAT MATTER FOLLOWING QUESTION OF LAW WAS RAISED 'WHETHER THE LEARNED INCOME-TAX APPELLATE TRIBUNAL ERRED IN HOLDING THAT PENALTY HAS BEEN LEVIED AFTER EXPIRY OF LIMITATION PERIOD AS LAID DOWN UNDE R SECTION 275(1)(A) OF THE INCOME-TAX ACT ?' FACTS OF THE CASE WERE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.10.2001.VIDE ASSESSMENT ORDER DATED 28.02.2003,THE AO COMPLETED THAT ASSESS MENT AND INTIMATED THE ASSESSEE ABOUT HIS INTENTION OF INITIATING PENALTY PROCEEDINGS.FAA CON FIRMED THAT ORDER OF THE AO OF 23.12.2005 AND THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE O N 11.08.2008.ON 26.02.2009 THE AO LEVIED PENALTY U/S.271(1)(C) OF THE ACT AND SAME WAS CONFI RMED BY THE FAA ON 12.10.2009. CONSEQUENT -LY,THE ASSESSEE APPROACHED THE TRIBUNAL WHICH ALLO WED THE APPEAL OF THE ASSESSEE, VIDE ORDER DATED 30.04.2010,HOLDING THAT PENALTY WAS IMPOSED B EYOND THE PERIOD OF LIMITATION AS PRESCRIBED UNDER SECTION 275(1)(A) OF THE ACT.WHILE DISCUSSING THE MATTER THE HONBLE RECORDED THE ARGUMENTS OF THE ASSESSEE IN FOLLOWING MANNER: ON THE CONTRARY, THE SUBMISSION ON BEHALF OF THE A SSESSEE WAS THAT THE PROVISION HAD BEEN AMENDED AND THE PROVISO INTRODUCED TO CARVE OUT A N EW SET OF CASES WHICH DEALT WITH THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) AFTER JUNE 1, 2003. IT WAS NEXT ARGUED THAT THE OBJECTIVE BEHIND THE INTRODUCTION OF THE PROVIS O WAS TO ACCELERATE THE PROCEEDINGS IN WHICH PUNISHMENT IS IMPOSED BY THE ASSESSING OFFICER. LAS TLY, IT WAS ARGUED THAT SECTION 275(1)(A) HAS TO BE READ IN CONSONANCE WITH SECTION 275(1A). AFTER CONSIDERING THE RIVAL ARGUMENTS AND RELYING U PON THE DECISION OF THE HONBLE MADRAS HIGH DELIVERED IN THE CASE OF RAYALA CORPORATION P. LTD. (288 ITR 452) THE HONBLE HIGH COURT HAS HELD AS UNDER: A PROVISO IS MERELY A SUBSIDIARY TO THE MAIN SECTI ON AND MUST BE CONSTRUED IN THE LIGHT OF THE SECTION ITSELF. IT HAS TO BE CONSTRUED HARMONIOUSLY WITH THE MAIN PROVISION.THE PERIOD OF SIX MONTHS PROVIDED FOR IMPOSITION OF PENALTY UNDER SEC TION 275(1)(A) OF THE INCOME-TAX ACT, 1961, STARTS RUNNING AFTER THE SUCCESSIVE APPEALS FROM AN ASSESSMENT ORDER HAS BEEN FINALLY DECIDED BY THE COMMISSIONER (APPEALS) OR THE TRIBUNAL, AS THE CASE MAY BE, WHICHEVER PERIOD EXPIRES LATER.THE PROVISO TO SECTION 275(1)(A) HAS ONLY THE EFFECT OF EXTENDING THE PERIOD OF IMPOSING PENALTY FROM SIX MONTHS TO ONE YEAR WITHIN THE RECE IPT OF THE ORDER OF THE COMMISSIONER AFTER JUNE 1, 2003.THE PROVISO THUS CARVES OUT AN EXCEPTION FR OM THE MAIN SECTION INASMUCH AS IN CASES WHERE NO APPEAL IS FILED BEFORE THE TRIBUNAL THE AS SESSING OFFICER MUST IMPOSE PENALTY WITHIN A PERIOD OF ONE YEAR TO BE RECKONED FROM THE DATE OF RECEIPT OF THE ORDER BY THE COMMISSIONER. 6 ITA NO.7569/MUM/2011 M/S.USHDEV COMMERCIAL SERVICES P. LTD. SECTION 275(1A) WHICH WAS INTRODUCED LATER ON DOES NOT DILUTE OR IN ANY MANNER RENDER NUGATORY THE MAIN PROVISION, WHICH CAN ONLY BE READ TO MEAN THAT THE LIMITATION PERIOD FOR LEVY OF PENALTY, ONLY IN THE CASE OF ORDER OF THE TRIBUNAL, TO BE AS PROVIDED UNDER THE MAIN SECTION AND NOT OTHERWISE. THE PROVISO TO SECTION 275(1)(A) OF THE ACT DOES NOT NULLIFY THE AVAILABILITY TO THE ASSESSING OFFICER OF THE PERIOD OF LIMITATION OF SI X MONTHS FROM THE END OF THE MONTH WHEN THE ORDER OF THE TRIBUNAL IS RECEIVED BY THE ASSESSING OFFICER. THAT THE ORDER OF THE TRIBUNAL WAS RENDERED ON AUGUST 11, 2008, AND THE ORDER PASSED B Y THE ASSESSING OFFICER LEVYING PENALTY WAS PASSED ON FEBRUARY 26, 2009, I.E., WITHIN A PERIOD OF SIX MONTHS FROM THE ORDER OF THE TRIBUNAL. IT WAS NOT BARRED BY LIMITATION. THE HONBLE COURT HAD ALSO DISCUSSED THE PURPOSES O F A PROVISO TO A SECTION OF THE ACT.AFTER CONSIDERING THE RELEVANCE OF THE PROVISO IT WAS FUR THER HELD THAT THE PROVISO TO SECTION 275(1)(A) HAD ONLY THE EFFECT OF EXTENDING THE PERIOD OF IMPO SING PENALTY FROM SIX MONTHS TO ONE YEAR WITHIN THE RECEIPT OF THE ORDER OF THE COMMISSIONER AFTER JUNE 1, 2003. WE ALSO FIND THAT WHILE DECIDING THE ISSUE THE HON' BLE DELHI HIGH COURT IN THE CASE OF MOHIR INVESTMENT & TRADING CO. PVT. LTD.(SUPRA) HAS CONSI DERED THE EXPLANATORY NOTE AND MEMORANDUM EXPLAINING THE AMENDMENT.IT IS TRUE THAT IN THE ORD ER SPECIFIC MENTION OF THESE DOCUMENTS IS NOT THERE,BUT THE ORDER CLEARLY SHOWS THAT THEY HAD BEE N CONSIDERED. HON'BLE COURT HAS MENTIONED THAT BY INTRODUCING THE PROVISO A SEPARATE CATEGORY WAS CARVED OUT WHERE THE LIMIT WAS EXTENDED.WE FIND THAT IN THE CBDT CIRCULAR (SUPRA) AT PARAGRAPH 80.2 IT IS MENTIONED THAT PENALTY PROCEEDINGS WERE TO BE COMPLETED WITHIN 1 YEAR FROM THE END OF THE FINANCIAL YEAR. HERE IT WOULD BE USEFUL TO TAKE NOTICE OF THE JUDGM ENT OF RAYALA CORPORATION P. LTD.(SUPRA) OF HONBLE MADRAS HIGH COURT. IN THAT MATTER HONBLE C OURT HAD HELD THAT THE LIMITATION PERIOD FOR THE LEVY OF PENALTY WOULD BE AS PROVIDED FOR UNDER SECTION 275(1)(A) THAT IS SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE TRIBUNAL IS RECEIVED BY THE INCOME-TAX OFFICER. IN LIGHT OF THE ABOVE TWO DECISIONS OF THE HONBLE HIGH COURTS,WE ARE OF THE OPINION THAT WE HAVE TO FOLLOW THEM AND DECIDE THE ISSUE ACCORDINGLY.JUD ICIAL DISCIPLINE AND PRECEDENTS DEMAND THAT THE TRIBUNAL SHOULD NOT QUESTION THE WISDOM OF THE HONBLE HIGH COURT.BEFORE US,THERE ARE TWO JUDGMENTS AND WE WOULD LIKE TO FOLLOW THEM NOT ONLY BECAUSE WE BELIEVE IN JUDICIAL HIERARCHY,BUT ALSO FOR THE REASON THAT THE SECTION 275 IS A PROCE DURAL SECTION. 2.3.3. ONE OF THE BASIC PRINCIPLE OF THE TAXATION JURISPRU DENCE STIPULATES THAT NO ONE HAS A VESTED AND SUBSTANTIVE RIGHT IN THE PROCEDURE AND LIMITATI ON HAS TO BE CONSIDERED AS A PART OF THE PROCEDURAL LAW AS DISTINCT FROM SUBSTANTIVE LAW,THA T THE LAW OF PROCEDURE MAY BE SAID TO BE THAT BRANCH OF THE LAW WHICH GOVERNS THE PROCESS OF LITI GATION,THAT IT IS THE LAW OF ACTIONS : ALL THE RESIDUE IS SUBSTANTIVE LAW AND RELATES NOT TO THE P ROCESS OF LITIGATION, BUT TO ITS PURPOSES AND SUBJECT-MATTER. IN OTHER WORDS, THE SUBSTANTIVE LAW DEFINES THE REMEDY AND THE RIGHT, WHILE THE LAW OF PROCEDURE DEFINES THE MODES AND CONDITIONS OF AP PLICATION OF THE ONE TO THE OTHER. OUR VIEW IS BASED ON THE FULL BENCH DECISION OF THE HONBLE AND HRA PRADESH HIGH COURT PRONOUNCED IN THE CASE OF WATAN MECHANICAL AND TURNING WORKS(107ITR74 3).IN THAT MATTER THE HONBLE COURT WAS DEALING WITH THE AMENDMENT TO THE SECTION 275 OF TH E ACT.HON'BLE COURT HELD AS UNDER: THE LIABILITY FOR TAX OR PENALTY WOULD ALWAYS REMA IN ON THE ASSESSEE; BUT IF THE TIME PRESCRIBED UNDER THE ACT EXPIRES, THE LIABILITY CANNOT BE IMPO SED BY THE AUTHORITIES, THE REASON BEING THAT THE ASSESSEE SHOULD NOT BE SUBJECTED TO UNENDING HARDSH IP. HOWEVER, BEFORE THE LIMITATION PRESCRIBED EXPIRES, IF THE SAME IS ENLARGED, THE LIMITATION BE ING A PROCEDURAL ONE, THE EXTENDED PERIOD OF LIMITATION WILL APPLY TO SUCH PROCEEDINGS. IN THE INSTANT CASE, UNDER THE OLD SECTION 275, AS IT STOOD BEFORE THE AMENDMENT ACT, 1970, THE LIMITATION FOR LEVYING PENALTY WAS DUE TO EXPIRE BY FEBRUARY 25, 1972. AS SECTION 275 OF THE INCOME-TAX ACT WAS AMENDED WITH EFFECT FROM APRIL 1 , 1971, ENLARGING THE LIMITATION, THE AMENDED SECTION GOVERNS THE CASE UNDER WHICH THE IMPUGNED O RDERS LEVYING PENALTY WOULD BE IN TIME AS THEY WERE MADE BEFORE 31ST MARCH, 1972. WE HAVE GONE THROUGH THE CASES RELIED UPON BY THE A SSESSEE DELIVERED BY THE VARIOUS BENCHES OF THE TRIBUNAL,BUT WE ARE UNABLE TO AGREE WITH VIEWS EXPRESSED IN THEM IN BECAUSE OF THE ABOVE 7 ITA NO.7569/MUM/2011 M/S.USHDEV COMMERCIAL SERVICES P. LTD. REFERRED TWO JUDGMENTS OF THE HONBLE HIGH COURTS.W E HAVE GONE THROUGH THEM AND FIND THAT THE ISSUE HAS BEEN DISCUSSED AT LENGTH.WE FIND THAT THE RE IS NO REASON AS TO WHY SAME SHOULD NOT BE FOLLOWED.AS FAR AS PROVISIONS OF SECTIONS 115, 143, 115(O) ARE CONCERNED,IT IS SUFFICE TO SAY THAT THEY ALL DEAL WITH SUBSTANTIVE LAW AND DETERMINE TH E RIGHTS OF THE ASSESSEE.A PERUSAL OF CHAPTER XXI REVEAL THAT SECTION 271 IS A SUBSTANTIVE PROVIS ION WHEREAS SECTION 274 PROVIDES THE PROCEDURE TO BE FOLLOWED IN GIVING EFFECT TO THE SAID SUBSTAN TIVE CHARGING PROVISION AND SECTION 275 CREATES A BAR OF LIMITATION AGAINST THE IMPOSITION OF PENALTY .THUS,WHILE DECIDING THE QUESTION OF LIMITATION AS MENTIONED IN THE SECTION,WE ARE OF THE OPINION T HAT PENALTY ORDER PASSED BY THE AO WAS WITHIN THE TIME-LIMIT ENVISAGED BY THE ACT.WE ALSO FIND TH AT THE FAA HAS REDUCED THE PENALTY FROM 200% TO 100%.THUS,HIS ORDER,IN OUR OPINION, IS REASONABL E AND JUSTIFIABLE AND IT DOES NOT SUFFER FROM ANY LEGAL OR FACTUAL INFIRMITY.SO, CONFIRMING THE S AME,WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAINST THE ASSESSEE. AS A RESULT,APPEAL FILED B Y THE ASSESSEE STANDS DISMISSED. 06 06 06 06 !/0 !/0 !/0 !/0 7!! 7!! 7!! 7!! (!8 (!8 (!8 (!8 2 22 2 4 44 4 )90 )90 )90 )90 2 22 2 $!0 $!0 $!0 $!0 : :: : . ORDER PRONOUNCED IN THE OPEN COURT ON 3RD SEPTEMBER,2014 . (%5 (%5 (%5 (%5 2 22 2 3* ! 3* ! 3* ! 3* ! % % % % &!! &!! &!! &!! ; ;; ; <(! <(! <(! <(! 3 0= 0= 0= 0= , 201 4 2 22 2 4 44 4 > >> > SD/- SD/- ( . / D.MANMOHAN) ( !$%&' !$%&' !$%&' !$%&' / RAJENDRA) !'# / VICE PRESIDENT %! %! %! %! () () () () /ACCOUNTANT MEMBER / MUMBAI, <(! /DATE: 03.09.2014. SK (%5 (%5 (%5 (%5 2 22 2 -0? -0? -0? -0? @%?*0 @%?*0 @%?*0 @%?*0 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / !+, 2. RESPONDENT / -.+, 3. THE CONCERNED CIT(A)/ A B , 4. THE CONCERNED CIT / A B 5. DR F BENCH, ITAT, MUMBAI / ?C!4 -0 , , . . &!! . 6. GUARD FILE/ 4! ! .!?0 .!?0 .!?0 .!?0 -0 -0-0 -0 //TRUE COPY// (%5!! / BY ORDER, / ! $! DY./ASST. REGISTRAR , /ITAT, MUMBAI