M/s Shashanko Commotrade (P) Ltd, Kolkata V. ITO,Ward-5(1), Kolkata, Kolkata

ITA 778/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70379 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 1997-1998
• Appeal Filed On: 15-05-2012
• Court: TRIBUNAL
• Department Lawyers: AMATIVA CHOUDHURY
• Keywords: Period of limitation
• Section: 143(3); 68

Judgement Text

, B , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [ () , , , , ! ' ! ! ' ! ! ' ! ! ' ! , ] ]] ] [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SING H, JM] $ $ $ $ /ITA NO.778/KOL/2012 '%& '(/ ASSESSMENT YEAR : 1997-98 (*+ / APPELLANT ) - % - ( -*+ /RESPONDENT) M/S.SHASHANKO COMMOTRADE (P)LTD. -VERSUS- I.T.O., W ARD-5(1), KOLKATA KOLKATA (PAN:AADCS 6894 E) *+ . / / FOR THE APPELLANT: SHRI RAJEEVA KUMAR, ADVOCATE -*+ . / / FOR THE RESPONDENT: SHRI AMATIVA CHOUDHURY, JCIT, SR.DR %0 . 1 /DATE OF HEARING : 05.08.2013. 2' . 1 /DATE OF PRONOUNCEMENT : 05.08.2013 3 / ORDER ( (( (! ' ! ! ' ! ! ' ! ! ' !) )) ), , , , ' PER SHRI MAHAVIR SINGH, JM THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-VI, KOLKATA IN APPEAL NO.1445/CIT(A)-VI/WD-5(1)/09-10/08-09/KOL DATED 10. 02.2012. ASSESSMENT WAS FRAMED BY I.T.O., WARD-5(1), KOLKATA U/S 254/147/14 3(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR A.Y R. 1997-98 VIDE ITS ORDER DATED 15.04.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE PENALTY LEVIED BY A.O. U/S 271(1)(C) OF THE ACT. FOR THIS, ASSESSEE HAS RAISED FOLLOWING TWO GROUNDS :- 1. THAT THE LD. CIT(A) WAS WRONG IN CONFIRMING PENALTY OF RS. 2,15,447/- UNDER SEC. 271 (1 )(C) OF THE I. TAX ACT WITHOUT CONSIDER ING THE FACT THAT THE NOTICE DT. 15- 04-08 IN RESPECT OF INITIATION OF PENALTY WAS DEFEC TIVE, BEING TIME BARRED AND THE SUBSEQUENT PENALTY ORDER DT. 31-10-08 PASSED BY THE A.O. ULS 271(1)(C) OF THE ACT BASED ON SUCH NOTICE WAS WITHOUT ANY LEGAL AUTHORIT Y. THE PENALTY SO IMPOSED AND CONFIRMED BY THE LD. CIT (A) IS WRONG & NEED TO BE CANCELLED. ITA NO.778/KOL/2012 M/S.SHASHANKO COMMOTRADE (P)LTD VS ITO.WD-5(1).KOL A.YR.1997-98 2 2. WITHOUT PREJUDICE TO WHATEVER CLAIMED IN THE GROUND NO.1; THE LD. CIT (A) ERRED IN CONFIRMING PENALTY ULS 271(1)(C) OF THE I. TAX ACT AMOUNTING TO RS. 2,15,447/@ 100% OF THE AMOUNT OF TAX ON THE ADDITIO N MADE IN THE ASSESSMENT PROCEEDINGS ULS 254/147/143(3) OF THE ACT. THE ASSE SSEE ACCEPTED THE ADDITION AND DIDN'T PREFER ANY APPEAL AGAINST THE SAME TO BU Y PEACE & END PROTRACTED LITIGATION ALTHOUGH THERE WAS NO CONCEALMENT REGARD ING THE CONTRIBUTION TOWARDS THE SHARE CAPITAL BY ONE OF THE APPLICANTS. THE ASSESSE E ALSO PAID TAX AND INTEREST ON THE AMOUNT OF ADDITION MADE. AS SUCH, THE IMPOSITIO N OF PENALTY WITHOUT ESTABLISHING THE FACTUM OF CONCEALMENT IS WRONG AND NEED TO BE DELETED. FIRST OF ALL THE ASSESSEE STATED THAT PENALTY LEVIE D BY AO IS BARRED BY LIMITATION. QUA THIS ARGUMENT THE ASSESSEE RELIED ON GROUND NO.1. 3. BRIEFLY STATED FACTS ARE THAT ASSESSMENT WAS FR AMED FOR RELEVANT A.Y 1997-98 U/S 143(3) R.W.S. 147 OF THE ACT ON 03.03.2003. AS SESSEE CHALLENGED THE ADDITION OF CASH CREDIT OF RS. 5,00,000/- BEING UNEXPLAINED INV ESTMENT IN SHARE APPLICATION MONEY. THE CIT(A)-V, KOLKATA VIDE ITS APPEAL NO.CIT (A)-V/KOL/180/WD5(1)/03-04 DATED 22.09.2003 UPHELD THE ADDITION MADE U/S 68 OF THE ACT AMOUNTING TO RS.5,00,000/-. THE ASSESSEE FILED A SECOND APPEAL B EFORE THE TRIBUNAL, B BENCH, KOLKATA AGAINST THE CONFIRMATION OF THIS ADDITION, WHEREIN TRIBUNAL VIDE ITS ORDER IN ITA NO.258/KOL/2003 SET ASIDE THE ISSUE TO THE FILE OF AO VIDE ORDER DATED 13.07.2004 WITH THE FOLLOWING DIRECTIONS :- WE, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF T HE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER GIVING AN OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. THE ASSESSEE SHALL BE UNDER AN OBLIGATION TO DISCHARGE ITS INITIAL ONUS BY PROVING THE IDENTITY OF THE CREDITORS, THE FINANCIAL CAPABILITY OF THE CREDITORS AND THE GENUINELY OF THE TRANSACTIONS LAY UPON THE ASSESSEE BY VIRTUE OF SECTION 68 OF THE ACT. WE ORDER ACCORDINGLY. THE AO PROVIDED REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE BUT THE ASSESSEE COULD NOT PROVE (I) EXISTENCE, (II) GENUIN ENESS OF TRANSACTIONS WITH JAIHIND COMMERCIAL PVT. LTD. AND (III) CAPACITY. THE AO MAD E ADDITION VIDE ORDER DATED 15.04.2008 U/S 154/147/143(3) OF THE ACT BY OBSERVI NG AS UNDER :- IN VIEW OF THE ABOVE, THE EXISTENCE AND GENUINENES S OF THE TRANSACTION IN RESPECT OF M/S.JAIHIND COMMERCIAL PVT. LTD. COULD NOT BE PR OVED. THE ASSESSEE HAS THE PRIMARY BURDEN TO THE PROOF THE ONUS BY GIVING IDEN TITY, CAPACITY AND GENUINENESS OF ANY TRANSACTION IN ITS BOOKS OF ACCO UNTS WITH HE FAILED TO FURNISHED. HENCE, ALLEGED SHARE INVESTMENT OF RS.5, 00,000/- MADE BY M/S.JAIHIND COMMERCIAL PVT. LTD. IS NOTHING BUT THE ASSESSEES OWN MONEY INTRODUCED IN ITS ITA NO.778/KOL/2012 M/S.SHASHANKO COMMOTRADE (P)LTD VS ITO.WD-5(1).KOL A.YR.1997-98 3 BOOKS IN THE GARB OF SHARE CAPITAL. THE ASSESSEE FA ILED TO OFFER ANY EXPLANATION IN THIS REGARD. THEREFORE, THIS IS TREATED AS UNDISCLO SED CASH CREDIT U/S 68 OF THE I.T.ACT, 1961 AND RS.5,00,000/- IS ADDED BACK TO TH E INCOME OF THE ASSESSEE FOR THE FINANCIAL YEAR 1996-97 TO THE RELEVANT ASSESSME NT YEAR 1997-98. 4. THE ASSESSEE ACCEPTED THE ADDITION TO BUY PEACE AND PROTRACTED LITIGATION. THE AO LEVIED PENALTY U/S 271(1)(C) OF THE ACT AND DURI NG THE PENALTY PROCEEDINGS THE ASSESSEE COULD NOT ESTABLISH THAT THE ASSESSEE COMP ANY HAD NOT CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SU CH INCOME. THE AO LEVIED PENALTY U/S 271(1)(C) OF THE ACT AT THE RATE OF 100% OF TAX SOUGHT TO BE EVADED. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO CONFIR MED PENALTY, AS NOT BARRED BY LIMITATION, BY OBSERVING AS UNDER : 10. THE HONBLE ITAT HAS SET ASIDE THE ISSUE VIDE ITS ORDER DATED 13.7.2004 WHICH HAS BEEN DECIDED BY THE ASSESSING OFFICER ON 15.4.2008. DURING THE APPELLATE PROCEEDINGS, THE COUNSEL ADMITTED THAT TH E ISSUE OF TIME BARRING WAS NOT TAKEN EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE PENALTY PROCEEDINGS BEFORE THE ASSESSING OFFICER. THE ASSES SING OFFICER HAS PASSED THE ORDER U/S 254/147/143(3) ON 15.4.2008 AND THE PENAL TY U/S 271(1)(C) HAS BEEN PASSED ON 31.10.2008. THE APPELLANT AHS RAISED THIS ISSUE AS AN ADDITIONAL GROUND ON 25.3.2010 AS PER THE PROVISIONS OF SECTIO N 275(1)(A). THE ASSESSING OFFICER HAS PASSED THE ORDER WELL WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER U/S 254/147/143(3) HAS BEEN PASSED BY HIM. THE ORDER DATED 15.4.2008 AND ITS VALIDITY WAS NEVER QUESTIONED BY THE ASSESSEE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE ANY APPELLATE AUTHORITY . SINCE THE ORDER PASSED U/S 254/147/143(3) IS HELD AS VALID ORDER AND ITS VALID ITY CANNOT BE QUESTIONED NOW DURING THE APPELLATE PROCEEDINGS IN A DIFFERENT ORD ER PASSED U/S 271(1)(C). AS FAR AS THE ORDER U/S 271(1)(C) DATED 31.10.2008 IS CONC ERNED, IT IS A VALID ORDER AS PER THE PROVISIONS OF SECTION 275(1)(A). THE PENALT Y PROCEEDINGS WERE INITIATED IN THE ASSESSMENT ORDER PASSED U/S 147/143(3) DATED 3. 3.2003 AND ALSO IN THE ORDER DATED 15.4.2008. THEREFORE, IT CANNOT BE SAID THAT THE IMPOSITION OF LEVYING OF PENALTY U/S 271(1)(C) DATED 31.10.2008 WAS BARRED B Y LIMITATION. THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER IS UPHELD TO BE A VALID ORDER AND NOT BARRED BY LIMITATION U/S 275(1)(A). THEREFORE, THES E GROUNDS OF APPEAL ARE DISMISSED. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE THE TRI BUNAL. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT CIT(A) HAS NOTED THE IMP ORTANT DATES, WHICH ARE VERY IMPORTANT TO DECIDE THIS ISSUE AND THE SAME READS A S UNDER :- ITA NO.778/KOL/2012 M/S.SHASHANKO COMMOTRADE (P)LTD VS ITO.WD-5(1).KOL A.YR.1997-98 4 SL.NO. NATURE OF ORDER DATE AUTHORITY 1. ASSESSMENT ORDER U/S 147/143(3) 3.3.2003 ASSESSING OFFICER 2. APPELLATE ORDER, CIT(A)- V,KOLKATA 22.9.2003 C.I.T.(A)-V,KOLKATA 3. HONBLE ITAT, KOLKATA 13.07.2004 ITATB BENCH, KOLKATA 4. ASSESSMENT ORDER U/S 254/147/143(3) 15.4.2008 ASSESSING OFFICER 5. PENALTY ORDER U/S 271(1)(C) 31.10.2008 ASSESSING OFFICER FROM THE ABOVE RELEVANT DATES, IT IS SEEN THAT ASSE SSMENT ORDER U/S 147 R.W.S. 143(3) OF THE ACT WAS PASSED BY AO DATED 3.3.2003. THE ASSESS EE TOOK THE MATTER TO CIT(A) AND TRIBUNAL AND BOTH THE APPELLATE AUTHORITIES PASSED ORDERS DATED 29.02.2003 AND 13.07.2004. THE TRIBUNAL IN ITA NO.2581/KOL/2007 HA S SET ASIDE THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER GIVING OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. THE TRIBUNAL DIRECTED THE ASSESSEE TO DISCHARGE ITS ONUS OF PROVING IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTION. TH E AO FRAMED ASSESSMENT IN VIEW OF THE DIRECTIONS OF TRIBUNAL AND PASSED ORDER U/S 254/147/143(3) OF THE ACT DATED 15.4.2008. THE AO IN THE FRESH ASSESSMENT ORDER, PA SSED IN PURSUANT TO TRIBUNALS DIRECTIONS, INITIATED PENALTY PROCEEDINGS U/S 271(1 )(C) OF THE ACT. THE FRESH ASSESSMENT FRAMED BY AO PURSUANT TO TRIBUNALS ORDER ON 15.4.2 008, IN WHICH PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) OF THE ACT . THE PENALTY ORDER WAS PASSED ON 31.10.2008 WITHIN THE PRESCRIBED PERIOD U/S 275 OF THE ACT. 6. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN F AVOUR OF THE REVENUE AND AGAINST THE ASSESSEE BY THE DECISION OF THE HONBLE ANDHRA PRADESH HIGH COURT, WHEREIN THE QUESTION OF PERIOD OF LIMITATION FOR IMPOSING PENAL TY ON THE BASIS OF FRESH ASSESSMENT IN PURSUANT TO THE ORDER OF THE TRIBUNAL IS ANSWERE D. HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF SEETHARAMA LAKSHMI RICE & GROU NDNUT OIL MILL CONTRACTORS CO. VS. ITO (1978) 111 ITR 212 (AP) HELD AS UNDER (FROM HEAD NOTES): FOR THE ASSESSMENT YEAR 1965-66, THE ASSESSMENT IN RESPECT OF THE PETITIONER, A REGISTERED FIRM, WAS FIRST COMPLETED ON DECEMBER 27 , 1969, AND PENALTY PROCEEDINGS WERE INITIATED SIMULTANEOUSLY. IN THE A PPEAL PREFERRED AGAINST THE ASSESSMENT ORDER, THE APPELLATE ASSISTANT COMMISSIO NER, BY HIS ORDER DATED OCTOBER 23, 1970, RECEIVED BY THE COMMISSIONER OF I NCOME-TAX ON NOVEMBER 23, 1970, SET ASIDE THE ASSESSMENT ORDER DATED DECE MBER 27, 1969, AND DIRECTED ASSESSMENT DE NOVA. THEREAFTER, A FRESH ASSESSMENT WAS MADE ON JULY 25, 1972. ITA NO.778/KOL/2012 M/S.SHASHANKO COMMOTRADE (P)LTD VS ITO.WD-5(1).KOL A.YR.1997-98 5 THE INCOME-TAX OFFICER AGAIN ISSUED NOTICE PROPOSIN G TO LEVY PENALTY UNDER SECTION 271(1)(A) AND, THEREAFTER, HE PASSED ORDER ON DECEMBER 23, 1972, IMPOSING A PENALTY. AGAINST THE SAID ORDER, THE ASS ESSEE FILED UNSUCCESSFUL APPEALS BEFORE THE APPELLATE ASSISTANT COMMISSIONER AND THE INCOME-TAX APPELLATE TRIBUNAL ON THE QUESTION OF REASONABLENES S OF THE CAUSE FOR THE DELAY. IN A WRIT PETITION FILED UNDER ARTICLE 226 OF THE C ONSTITUTION OF INDIA, THE ASSESSEE CONTENDED THAT THE CRUCIAL DATE FOR THE PU RPOSE OF COMPUTING LIMITATION UNDER SECTION 275(A)(I) IS THAT OF ORIGINAL ASSESSM ENT AND NOT OF THE ORDER PASSED AFTER REMAND; THAT THE PENALTY ORDER DATED D ECEMBER 23, 1972, HAVING BEEN PASSED TWO YEARS AFTER THE END OF THE FINANCIA L YEAR IN THE COURSE OF WHICH, THE PROCEEDINGS FOR PENALTY HAD BEEN COMPLETED, AND SIX MONTHS AFTER THE END OF THE MONTH OF SERVICE OF THE ORDER OF THE APPELLATE ASSISTANT COMMISSIONER ON THE COMMISSIONER (VIZ., NOVEMBER, 1970) THE SAME IS BAR RED BY LIMITATION UNDER SECTION 275(A) SUB-CLAUSE (II) OF THE INCOME-TAX AC T AS AMENDED BY THE TAXATION LAWS (AMENDMENT) ACT, 1970. FURTHER, IT WAS CONTEND ED THAT THOUGH THE PENALTY WAS IMPOSABLE ON THE REGISTERED FIRM AS IF IT WERE TO BE AN UNREGISTERED FIRM, THE MAXIMUM PENALTY IMPOSABLE CANNOT EXCEED 50% OF THE TAX ACTUALLY ASSESSED UNDER SECTION 271(1)(A)(I) READ WITH SECTION 272 OF THE INCOME-TAX ACT: _ HELD, _ DISMISSING THE WRIT PETITION, THAT WHATEVER THE A SSESSMENT PROCEEDINGS HAD BEEN SUBJECTED TO APPEAL BEFORE THE APPELLATE A SSISTANT COMMISSIONER AND FURTHER APPEAL BEFORE THE APPELLATE TRIBUNAL, SECTI ON 275(A) OF THE INCOME-TAX ACT GOVERNS THE PERIOD OF LIMITATION, WHILE IN THE CASES WHERE THERE NO APPEALS PREFERRED AGAINST THE ORDERS, SECTION 275(B) GOVERN S THE LIMITATION. WHERE THE ASSESSMENT PROCEEDINGS REACHED FINALITY I N APPEAL EITHER BEFORE THE APPELLATE ASSISTANT COMMISSIONER OR THE APPELLATE T RIBUNAL, THE LIMITATION OF SIX MONTHS' PERIOD RUNS FROM THE DATE OF SERVICE OF SUCH ORDER ON THE COMMISSIONER UNDER CLAUSE (II) OF SECTION 275(A) FO R THE PURPOSE OF LEVY OF PENALTY; WHERE THE ASSESSMENT PROCEEDINGS REACHED F INALITY BY REASON OF IT NOT BEING CARRIED IN APPEAL, CLAUSE (I) OF SECTION 275( A) GOVERNS AND THE PERIOD OF TWO YEARS PRESCRIBED THEREIN RUNS FROM THE END OF T HE FINANCIAL YEAR IN WHICH THE PROCEEDINGS IN THE COURSE OF WHICH ACTION FOR I MPOSITION OF PENALTY HAS BEEN INITIATED ARE COMPLETED. HOWEVER, WHERE THE ASSESSM ENT PROCEEDINGS ARE NOT COMPLETED BY REASON OF THE ASSESSMENT ORDER BEING S ET ASIDE IN APPEAL EITHER BY THE APPELLATE ASSISTANT COMMISSIONER OR THE APPELLA TE TRIBUNAL AND REMANDED, IT IS THE DATE OF ASSESSMENT ORDER PASSED PURSUANT TO THE REMAND ORDER OF THE APPELLATE AUTHORITY, THAT IS CRUCIAL FOR THE PURPOS E OF COMPUTATION OF LIMITATION UNDER CLAUSE (I), OF SECTION 275(A) AND CLAUSE (II) HAS NO APPLICATION IN SUCH CASES. THE USE OF THE WORDS 'ASSESSMENT OR OTHER ORDER' IN SUB-CLAUSE (II) OF SECTION 275(A) AS DISTINCT FROM THE WORDS 'THE PROCEEDINGS. .......ARE COMPLETED' IN CLAUSE (I) OF SECTION 275(A) MAKES IT CLEAR THAT TH E INTENTION OF PARLIAMENT IS THAT NOT MERELY PASSING AN ORDER BUT THE COMPLETION OF T HE PROCEEDINGS AS SUCH IS THE CRUCIAL ASPECT FOR PURPOSE OF COMPUTATION OF LIMITA TION UNDER CLAUSE (I) OF SECTION 275(A) OF THE INCOME-TAX ACT. ITA NO.778/KOL/2012 M/S.SHASHANKO COMMOTRADE (P)LTD VS ITO.WD-5(1).KOL A.YR.1997-98 6 IN THE INSTANT CASE, THE ORIGINAL ASSESSMENT ORDER DATED DECEMBER 27, 1969, HAVING BEEN SET ASIDE IN APPEAL, THERE WAS NO SUBSI STING ASSESSMENT ORDER UNTIL COMPLETION OF THE FRESH ASSESSMENT ON JULY 25, 1972 , AND, AS SUCH, THE PENALTY ORDER DATED DECEMBER 23, 1972, HAVING BEEN PASSED W ITHIN 2 YEARS FROM THE END OF THE FINANCIAL YEAR IN THE COURSE OF WHICH TH E FRESH ASSESSMENT PROCEEDINGS WERE COMPLETED, THE PENALTY ORDER WAS W ITHIN LIMITATION. 7. SIMILAR VIEW IS TAKEN BY HONBLE HIMACHAL PRADES H HIGH COURT IN THE CASE OF SETH PANCHHI RAM & CO. VS. CIT (1991) 192 ITR 289 ( HP), WHEREIN IT IS HELD AS UNDER (FROM HEAD NOTES): A PERUSAL OF SECTION 275 OF THE INCOME-TAX ACT, 19 61, WHICH LAYS DOWN THE PERIOD OF LIMITATION FOR LEVY OF PENALTY MAKES IT C LEAR THAT WHEREVER THERE HAS BEEN AN APPEAL AGAINST THE ASSESSMENT ORDER OR OTHE R ORDER AND IF THE MATTER REACHES A FINALITY, THE PERIOD AS FIXED BY SUB-CLAU SE (II) OF CLAUSE (A) IS SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE AFORE SAID FINAL ORDER IS RECEIVED BY THE COMMISSIONER. IN CASES WHERE THE PROCEEDINGS ARE NOT COMPLETED BY AN ORDER OF THE APPELLATE ASSISTANT COMMISSIONER OR TH E APPELLATE TRIBUNAL, SUB- CLAUSE (II) OF CLAUSE (A) WOULD HAVE NO APPLICATION BUT WHEN THERE IS NO APPEAL PENALTY CAN BE LEVIED WITHIN A PERIOD OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS ARE COMPLETED. THE EM PHASIS IS ON THE WORDS 'THE PROCEEDINGS . . . ARE COMPLETED'. WHEN THE PROCEEDI NGS FOR PENALTY INITIATED WHEN THE ASSESSMENT WAS MADE ORIGINALLY ARE SUBSEQU ENTLY DROPPED AFTER THE ASSESSMENT HAS BEEN SET ASIDE BY THE HIGHER AUTHORI TIES WITH AN ORDER OF REMAND WITH A DIRECTION TO MAKE A FRESH ASSESSMENT, IT CAN NOT BE SAID THAT THE PROCEEDINGS FOR ASSESSMENT WERE COMPLETED ON THE DA TE WHEN THE FIRST ORDER OF ASSESSMENT WAS MADE. THE EFFECT OF THE ORDER OF REM AND IS TO REMOVE FROM THE FILE THE ORDER APPEALED AGAINST AND WHEN THE ORIGIN AL ORDER OF ASSESSMENT IS TAKEN AWAY, THERE IS NO ASSESSMENT. AS SUCH, IT IS THE ORDER PASSED SUBSEQUENTLY WHICH IS RELEVANT AND NOT THE EARLIER ONE, WHICH HA D BEEN SET ASIDE. 'THE RELEVANT ASSESSMENT OR OTHER ORDER' OCCURRING IN SU B-CLAUSE (A) OBVIOUSLY REFERS TO THE SUBSEQUENT ASSESSMENT MADE BY THE INCOME-TAX OFFICER AFTER REMAND. THE FIRST ASSESSMENT CANNOT, BY ANY STRETCH OF IMAGINAT ION, BE CONSIDERED TO BE 'RELEVANT ASSESSMENT PROCEEDINGS OR OTHER ORDER'. _ HELD, _ THAT THE ORDER OF PENALTY PASSED ON MAY 23, 1977, WAS NOT BARRED BY LIMITATION SINCE THE FRESH ORDER OF ASSESSMENT WAS PASSED ON SEPTEMBER 13, 1974 AND THE APPEAL THEREFROM WAS FINALLY DECIDED ON JAN UARY 21, 1977. 8. IN VIEW OF THE MATTER, WE ARE OF THE VIEW THAT W HERE THE ORIGINAL ASSESSMENT ORDER IS SET ASIDE IN APPEAL, THERE IS NO SUBSTANTI AL ASSESSMENT ORDER TILL THE COMPLETION OF FRESH ASSESSMENT AND IT IS THE DATE OF THE FRESH ASSESSMENT ORDER WHICH IS RELEVANT FOR COMPUTING THE PERIOD OF LIMITATION FOR INITIATI NG PROCEEDINGS FOR IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT. THE PERIOD OF LIM ITATION IS TO BE COMPUTED FOR IMPOSING THE PENALTY AFTER A FRESH ASSESSMENT IN PU RSUANCE OF AN APPELLATE ORDER I.E. ITA NO.778/KOL/2012 M/S.SHASHANKO COMMOTRADE (P)LTD VS ITO.WD-5(1).KOL A.YR.1997-98 7 FROM THE DATE OF FRESH ASSESSMENT. IN SUCH CIRCUMST ANCES, WE HAVE NO ALTERNATIVE BUT TO ACCEPT AND CONFIRM THE ORDER OF CIT(A) ON LIMITA TION. 9. COMING TO THE MERITS OF THE CASE, THE LD. COUNSE L FOR THE ASSESSEE HAS NOT ARGUED AND HE PRACTICALLY CONCEDED THAT THERE IS NO THING TO SAY ON MERITS OF THE CASE. AS THE ASSESSEE BEFORE THE LOWER AUTHORITIES AND EV EN NOW BEFORE US HAS NOT ARGUED ON MERITS OF PENALTY, IN SUCH CIRCUMSTANCES, WE CONFIR M THE PENALTY. 10. IN THE RESULT THE APPEAL OF ASSESSEE IS DISMISS ED ORDER PRONOUNCED IN THE OPEN COURT ON 05.08.2013. SD/- SD/- [ , ] [ ! ' !, ' ] [ PRAMOD KUMAR ] [ MAHAVIR SINGH ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (1 1 1 1) )) ) DATE: 05.08.2013. R.G.(.P.S.) 3 . ''4 54'6- COPY OF THE ORDER FORWARDED TO: 1 . M/S.SHASHANKO COMMOTRADE (P)LTD., 9, MANGOE LANE, 2 ND FLOOR, KOLKATA- 700001. 2 THE I.T.O.-WARD-5(1), KOLKATA. 3 . THE CIT, 4. THE CIT(A)-VI, KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA -4 '/ TRUE COPY, 3%/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES