ACIT, Kannur V. Sri.P.P.Ummerkutty, Kannur

ITSSA 1/COCH/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1690 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 03-03-2016
• Assessment Year: misc
• Appeal Filed On: 06-02-2013
• Court: TRIBUNAL
• Department Lawyers: K P GOPAKUMAR
• Assessee Lawyers: R KRISHNAN
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay
• Section: 260A; 246; 132

Judgement Text

IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI B P JAIN, AM & GEORGE GEORGE.K, JM IT(SS)A NO.01/COCH/2013 (BLOCK PERIOD: 1987-88 TO 1997-98) ) THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, KANNUR. SHRI P.P. UMMERKUTTY, M/S. CITY BUILDERS, BANK ROAD, KANNUR. ( REVENUE-APPELLANT) VS (ASSESSEE -RESPONDENT) C.O. NO. 02/COCH/2013 (ARISING OUT OF IT(SS)A NO.01/COCH/2013) (BLOCK PERIOD: 1987-88 TO 1997-98) ) SHRI P.P. UMMERKUTTY, M/S. CITY BUILDERS, BANK ROAD, KANNUR. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, KANNUR. ( ASSESSEE -APPELLANT) VS (REVENUE -RESPONDENT) AN NO. AAGPU 2035H REVENUE BY SHRI K.P. GOPAKUMAR, SR. DR ASSESSEE BY SHRI R.KRISHNAN, CA DATE OF HEARING 04/03/2016 DATE OF PRONOUNCEMENT 09/03/2016 ORDER PER B P JAIN, AM: THIS APPEAL OF THE REVENUE ARISES FROM THE O RDER OF THE LD. CIT(A)-II, KOZHIKODE DATED 21/11/2012 FOR THE BLOCK PERIOD 198 7-88 TO 1997-98. THE ASSESSEE HAS ALSO RAISED CROSS OBJECTION AGAINST TH E APPEAL OF THE REVENUE IN C.O. NO. 02/COCH/2013. IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 2 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/S. 132 OF THE INCOME TAX ACT, 1961 WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 21.03.1997 AND THE ASSESSMENT WAS COMPLETED U/S. 158BC OF THE INCOME T AX ACT, 1961 ON 05.03.1999 FIXING THE TOTAL UNDISCLOSED INCOME AT R S.80,69,510/- FOR THE BLOCK PERIOD. AGAINST THIS ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS) AND ON GIVING E FFECT TO THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) DATED 27.03.199 9, THE TOTAL INCOME WAS REDUCED TO RS.18,49,640/- . THE DEPARTMENT WENT IN APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL AND THE TRIBUNAL HAS RETAINE D CERTAIN ADDITIONS MADE BY THE ASSESSING OFFICER AND THE TOTAL INCOME WAS FIXE D AT RS.42,65,340/-. THE ASSESSEE MOVED BEFORE THE HONBLE HIGH COURT OF KER ALA AGAINST THE ORDER OF THE ITAT DATED 22.12.2001. DURING PENDENCY OF APP EAL BEFORE THE HONBLE HIGH COURT, THE ASSESSING OFFICER PASSED THE ORDER DATED 08.07.2002, IMPOSING A PENALTY OF RS.25,00,000/- U/S. 158BFA(2). THE ASSE SSEE PREFERRED APPEAL AGAINST THE PENALTY ORDER BEFORE THE CIT(A) AND ON GIVING E FFECT TO THE ORDER OF THE CIT(A), THE PENALTY HAS BEEN REDUCED TO RS.24,18,45 2/-. THE ASSESSEE APPEALED FURTHER BEFORE THE ITAT AND THE ITAT IN THEIR ORDER DATED 27.04.2007 RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUE OF PENALTY AFRESH AFTER THE HIGH COURT DECIDES ON THE QUANTUM. THE HONBLE HIGH COURT OF KERALA IN THEIR ORDER IN I.T.A. NO.187&199 /2002 DATED 03.11.2009 SUSTAINED THE ADDITIONS AS RETAINED BY THE TRIBUNAL , WHEREBY THE TOTAL INCOME STOOD FIXED AT RS.42,65,340/-. THE ASSESSING OFFIC ER AFTER RECEIPT OF THE ORDER OF IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 3 THE HIGH COURT OF KERALA CONSIDERED THE ISSUE OF PE NALTY AFRESH AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE AND IMPOSED PENALTY OF RS.24,18,452/-, VIDE ORDER DATED 27.09.2010. 3. THE LD. CIT(A) QUASHED THE PENALTY ORDER PAS SED BY THE ASSESSING OFFICER AND HIS FINDINGS ARE VERY RELEVANT WHICH ARE REPROD UCED HEREINBELOW:- 6. I HAVE CONSIDERED ALL THE FACTS AND MATERIALS P LACED ON RECORD. THE ARGUMENT OF THE COUNSEL IS CENTRED AROUND MAINLY ON THE FOLLOWING TWO POINTS:- (I) WHETHER THE ASSESSEES CASE FALLS UNDER 158BFA( 3)(E) AND IF SO, THE ASSESSING OFFICER PASSED THE PENALTY ORDER WITHIN T HE TIME ALLOWED? II) WHETHER PERMISSION OF THE JOINT COMMISSIONER WA S REQUIRED FOR PASSING THE PENALTY ORDER AND IF SO, PERMISSION OF THE ADDI TIONAL JOINT COMMISSIONER WAS OBTAINED BEFORE PASSING THE ORDER ON 29/09/2010? 6.1 AS REGARDS THE FIRST POINT, SECTION 158BFA(3) OF THE ACT IS REPRODUCED HEREUNDER:- LEVY OF INTEREST AND PENALTY IN CERTAIN CASES. 158BFA. (3) NO ORDER IMPOSING A PENALTY UNDER SUB-SECTION ( 2) SHALL BE MADE,- (A) UNLESS AN ASSESSEE HAS BEEN GIVEN A REASON ABLE OPPORTUNITY OF BEING HEARD; (B) BY THE ASSISTANT COMMISSIONER (OR DEPUTY COMMI SSIONER) OR THE ASSISTANT DIRECTOR (OR DEPUTY DIRECTOR), AS THE CA SE MAY BE, WHERE THE AMOUNT OF PENALTY EXCEEDS TWENTY THOUSAND RUPE ES EXCEPT IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 4 WITH THE PREVIOUS APPROVAL OF THE (JOINT) COMMISSI ONER OR THE (JOINT) DIRECTOR, AS THE CASE MAY BE; (C) IN A CASE WHERE THE ASSESSMENT IS THE SUBJECT- MATTER OF AN APPEAL TO THE COMMISSIONER(APPEALS) U/S. 246 (OR S ECTION 246A) OR AN APPEAL TO THE APPELLATE TRIBUNAL U/S. 253, AFTE R THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE CO URSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INIT IATED, 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 COMMIS SIONER OR THE COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER; (D) IN A CASE WHERE THE ASSESSMENT IS THE SUBJECT- MATTER OF REVISION U/S. 263, AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDER OF REVISION IS PASSED; (E) IN ANY CASE OTHER THAN THOSE MENTIONED IN CLAU SES (C) AND (D), AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH TH E PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF P ENALTY HAS BEEN INITIATED, ARE COMPLETED, OR SIX MONTHS FROM THE E ND OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATE D, WHICHEVER PERIOD EXPIRES LATER; (F) IN RESPECT OF SEARCH INITIATED U/S. 132 OR BOO KS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS, REQUISITIONED U/S. 132A A FTER THE 30 TH DAY OF JUNE, 1995 BUT BEFORE THE 1 ST DAY OF JANUARY, 1997. IN VIEW OF THE ABOVE, THERE IS FORCE IN THE CONTENT ION OF THE COUNSEL THAT SINCE THE QUANTUM ASSESSMENT OF THE ASSESSEE WAS TH E SUBJECT MATTER OF APPEAL BEFORE THE HONBLE HIGH COURT OF KERALA U/S. 260A, HIS CASE FALLS U/S. 158BFA(3)(E). THE PROCEEDINGS IN THE COURSE OF WHICH ACTION FOR IMPOSITION OF PENALTY WAS INITIATED BECAME COMPLETE ONLY WITH THE PRONOUNCEMENT OF THE ORDER OF THE HIGH COURT OF KER ALA ON 03.11.2009 OR ON 24.02.2010 WHEN THE STANDING COUNSEL OF THE DEPA RTMENT RECEIVED THE CERTIFIED COPY OF THE ORDER. FURTHER, IN THE C ASE OF ORDERS U/S. 260A, ORDER-III, RULE-3 OF THE CODE OF CIVIL PROCEDURE AP PLIES AND NOT THE RULE NO.35 OF THE APPELLATE TRIBUNAL RULES WHICH REQUIRE S THAT THE ORDER SHALL BE COMMUNICATED AFTER IT IS SIGNED TO THE ASSESSEE AND TO THE COMMISSIONER IS NOT APPLICABLE. AS PER SECTION 158 BFA(3)(E) THE PENALTY ORDER GETS TIME BARRED AFTER THE EXPIRY OF THE FINA NCIAL YEAR IN WHICH THE PROCEEDINGS IN THE COURSE OF WHICH ACTION FOR THE I MPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED, OR SIX MONTHS FR OM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHICHEVER IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 5 PERIOD EXPIRES LATER. THUS, IN THIS CASE, AS THE S ECOND PART OF SECTION 158BFA(3)(E) IS NOT APPLICABLE, THE FIRST PART COME S TO PLAY AND THE PENALTY GETS TIME BARRED ON 31.03.2010. ALTERNATIV ELY IF SECTION 158BFA(3)(C) IS TO BE APPLIED FOR LIMITATION PURPOS ES, THE DATE OF RECEIPT OF THE ORDER BY THE COMMISSIONER OR THE DEPARTMENT SHALL BE THE DATE OF ORDER OF HIGH COURT, OR AN 24.02.2010. IT IS EVIDE NT FROM THE COPY OF HIGH COURTS ORDER OBTAINED BY THE ASSESSEE UNDER RTI FR OM THE OFFICE OF THE CIT THAT THE STANDING COUNSEL HAS APPLIED FOR THE C ERTIFIED COPY OF THE ORDER ON 04.11.2009 AND THE SAME WAS RECEIVED ON 16 .02.2010 BY HIM. THUS, RECKONING OF SIX MONTHS TIME STARTS FROM 16.0 2.2010 AND NOT 24.02.2010. IN THE CASE OF SULTANPUR KSHETRIYA GRAM IN BANK VS. JOINT COMMISSIONER OF INCOME TAX REPORTED IN 336 ITR 156 WHEREIN IT WAS HELD THAT ..THE CRUCIAL FACT IS WHETHER THE PERSON ON WHOM SERVICE HAS BEEN EFFECTED, WAS EMPOWERED TO ACCEPT THE SERVICE OR NOT. IN THE CASE ON HAND, ON UNDISPUTED FACTS, THE ADVOCATE WAS EMPOWERED TO ACCEPT THE COPY OF THE ORDER OF THE TRIBUNAL AND TH EREFORE, THE SERVICE ON HIM IS VALID SERVICE FOR THE PURPOSES OF CALCULA TION OF LIMITATION. THE SENIOR COUNSEL OF THE DEPARTMENT IS THE RECOGNIZED AGENT OF THE DEPARTMENT AND IS AUTHORIZED TO RECEIVE THE CERTIFI ED COPY OF THE JUDGMENT FROM THE HONBLE HIGH COURT. IN VIEW OF THIS, THE STANDING COUNSEL HAS TO BE TREATED AS THE RECOGNIZED AGENT O F THE COMMISSIONER/DEPARTMENT AND THE DATE OF RECEIPT OF THE ORDER OF THE HIGH COURT BY HIM HAS TO BE TREATED AS THE DATE OF RECEIPT OF THE ORDER BY THE COMMISSIONER/DEPARTMENT. THUS, THE PENALTY ORDER SHOULD HAVE BEEN PASSED ON OR BEFORE 31-03-2010 OR 31-08-2010. IN THE DECISION REPORTED IN 175 ITR 546 CIT VS. SHIV DAS SIRE MAL, THE HONOURABLE HIGH COURT OF RAJASTHAN HAS HELD THAT AS PER SECTION 275 AS AMENDED WITH EFFECT FROM 01.04.1971, THE BAR OF LIMITATION FOR I MPOSING PENALTY APPLIES NOT ONLY TO INITIAL ORDER BUT ALSO TO AN ORDER OF P ENALTY IMPOSED AS A CONSEQUENCE OF APPELLATE ORDER. AS THE ORDER HAS B EEN PASSED ON 27.09.2010, I AM INCLINED TO QUASH THE PENALTY ORDE R AS IT HAS BEEN PASSED AFTER THE LIMITATION PERIOD. 6.2 SECONDLY, AS SUBMITTED BY THE COUNSEL IN EARL IER PARAGRAPH, THE PENALTY ORDER DATED 27.09.2010 ACQUIRES THE CHARACT ER OF A PRIMARY ORDER AND FOR ALL PRACTICAL PURPOSES THIS ORDER HAS TO BE TREATED AS THE INITIAL LAWFUL ORDER. IN VIEW OF THIS, THE ASSESSIN G OFFICER SHOULD HAVE OBTAINED THE PRIOR APPROVAL OF THE JOINT COMMISSIO NER AS PER PROVISIONS OF 158BFA(3)(B). THE DECISION OF ITAT, PUNE BENCH IN THE CASE OF AKIL GULAMALI SOMJI VS. ITO, WARD-4(5), PUNE IN I.T.A. N OS. 458/PN/2010 DATED 30-03-2012, FOR THE ASSESSMENT YEARS 2001-02 TO 200 4-05 IS ALSO RELEVANT HERE. IN THAT JUDGMENT, THE TRIBUNAL HAS HELD THAT WHERE THE PROVISION IS MANDATORY AND IF THE APPROVAL OF THE SENIOR OFFICER IS NOT OBTAINED BEFORE PASSING THE ORDER, SUCH AN ORDER IS NULL AND VOID. AS THE PENALTY IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 6 ORDER DATED 27.09.2010 HAS BEEN PASSED WITHOUT THE APPROVAL OF THE JOINT COMMISSIONER, THE ORDER HAS TO BE TREATED AS NULL AND VOID. IN VIEW OF THIS, PENALTY IS NOT SUSTAINABLE ON THIS COUNT A LSO. 4. THE LD. DR RELIED UPON THE ORDER OF THE ASSES SING OFFICER AND ALSO THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT I N THE CASE OF CIT VS. VIJAY DAL MILLS, 230 ITR 301. 5. THE LD. AR RELIED UPON THE ORDER OF THE LD. CIT(A). 6. IN THE GROUNDS OF APPEAL, THERE ARE MAINLY TW O ISSUES. FIRSTLY, WHETHER THE ASSESSEES CASE FALLS U/S. 158BFA(3)(E) AND IF SO, THE ASSESSING OFFICER PASSED THE PENALTY ORDER WITHIN THE TIME ALLOWED? SECONDLY, WH ETHER PERMISSION OF THE JOINT COMMISSIONER WAS REQUIRED FOR PASSING THE PENALTY O RDER AND IF SO, PERMISSION OF THE JOINT COMMISSIONER WAS OBTAINED BEFORE PASSING THE ORDER ON 27.09.2010? 7. WE HAVE HEARD THE RIVAL CONTENTION AND PERUS ED THE FACTS OF THE CASE. FIRST OF ALL, WE PROCEED TO DECIDE THE FIRST QUESTION WHE THER THE ASSESSING OFFICER PASSED THE PENALTY ORDER WITHIN THE TIME ALLOWED ST ATUTORILY BY THE INCOME TAX ACT . THERE IS NO DISPUTE TO THE FACT IN THE PRESENT CA SE THAT THE QUANTUM ASSESSMENT OF THE ASSESSEE WAS THE SUBJECT MATTER O F APPEAL BEFORE THE HONBLE HIGH COURT OF KERALA U/S. 260A AND THEREFORE, THE P RESENT CASE FALLS U/S. 158BFA(3)(E) OF THE ACT. ACCORDINGLY, THE PROCEED INGS IN THE COURSE OF WHICH IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 7 ACTION FOR IMPOSITION OF PENALTY WAS INITIATED ARE COMPLETED WITH THE PRONOUNCEMENT OF THE ORDER OF THE HONBLE HIGH COUR T OF KERALA ON 03/11/2009 OR ON 24/02/2010 WHEN THE STANDING COUNSEL OF THE D EPARTMENT RECEIVED THE CERTIFIED COPY OF THE ORDER. IT IS ALSO UNDISPUTED THAT IN THE CASE OF THE ORDERS U/S. 260A, ORDER III, RULE 3 OF CODE OF CIVIL PROCE DURE APPLIES AND NOT RULE 35 OF THE APPELLATE TRIBUNAL RULES. ACCORDINGLY, AS PER SECTION 158BFA(3)(E), THE PENALTY ORDER GETS TIME BARRED AFTER THE EXPIRY OF THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPLETED OR SIX MONTHS FROM TH E END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHIC HEVER PERIOD EXPIRES LATER. IN THE PRESENT CASE, THE FIRST PART COMES TO PLAY AND THE PENALTY GETS TIME BARRED ON 31/03/2010. ALTERNATIVELY IF THE PROVISIONS OF SEC TION 158BFA(3)(C) ARE TO BE APPLIED FOR LIMITATION PURPOSES, THE DATE OF RECEIP T OF THE ORDER BY THE COMMISSIONER OR THE INCOME TAX DEPARTMENT SHALL BE THE DATE OF ORDER OF HONBLE HIGH COURT. IN THE PRESENT CASE, IT IS EVI DENT FROM THE COPY OF HONBLE HIGH COURTS ORDER OBTAINED BY THE ASSESSEE UNDER R TI WHICH THE STANDING COUNSEL HAS APPLIED ON 04/11/2009 AND THE SAME WAS RECEIVED ON 16/02/2010 AND ACCORDINGLY, RECKONING OF SIX MONTHS TIME START S FROM 16/02/2010. 8. IT IS PERTINENT TO REPRODUCE HEREINBELOW T HE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF SULTANPUR KSHETRIYA GRAMIN BANK V. JOINT CIT (2011) 336 ITR 156 (M.P.) AT PAGE 161:- IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 8 UNDER ORDER 3, RULE 3 OF THE CODE OF CIVIL PROCEDU RE PROCESSES SERVED ON A RECOGNIZED AGENT OF A PARTY, OR ON AN ADVOCATE OF THE PARTY SHALL BE EFFECTUAL AS IF THE SAME HAD BEEN SERVED ON THE PAR TY HIMSELF AS HELD IN JANGI BHAGAT RAMAWTAR VS. CIT, AIR 1930 PATNA 127. THE ALLAHABAD HIGH COURT IN MITHOO LAL TEK CHAND V. CIT (1967) 64 ITR 377 (ALL) HAS HELD THAT A MUNIM IS AN AUTHORIZED AGENT TO RECEIVE NOTICES ON BEHALF OF THE FIRM OF HIS EMPLOYERS. SERVICE ON THE SECRETARY OF THE MANA GING DIRECTOR OF A NOTICE ADDRESSED TO THE COMPANY WAS HELD TO BE VALI D SERVICE IN GENERAL COMMERCIAL CORPORATION LTD. V. CIT (1966) 62 ITR 45 9(MAD). THE CRUCIAL FACT IS WHETHER THE PERSON ON WHOM SERVICE HAS BEEN EFFECTED, WAS EMPOWERED TO ACCEPT THE SERVICE OR NOT. IN THE CASE ON HAND, ON UNDISPUTED FACTS, THE ADVOCATE WAS EMPOWERED TO ACC EPT THE COPY OF THE ORDER OF THE TRIBUNAL AND THEREFORE, THE SERVIC E ON HIM IS VALID SERVICE FOR THE PURPOSES OF CALCULATION OF LIMITATION FOR F ILING AN APPEAL. THE LEARNED COUNSEL FOR THE APPELLANT RIGHTLY ACCEP TED THE POSITION THAT IN VIEW OF THE RECENT FULL BENCH DECISION OF THE COURT CIT VS. MOHD. FAROOQ (2009) 317 ITR 305 (ALL); (2009) UPTC 1162 (FB) AN APPLICATION U/S. 5 OF THE LIMITATION ACT FOR CONDONATION OF DELAY IN FILING T HE APPEAL IS NOT MAINTAINABLE. BESIDES ABOVE, THE PERIOD OF LIMITATION FOR THE PUR POSES OF FILING OF AN APPEAL STARTS RUNNING FROM THE DATE OF RECEIPT OF T HE COPY OF THE ORDER OF THE TRIBUNAL, WHICH CANNOT BE AN UNCERTAIN OR DISPU TED DATE. FOR THE PURPOSES OF CALCULATION OF THE PERIOD OF LIMITATION , ITS STARTING POINT MUST BE A DEFINITE POINT AND IT CANNOT BE LEFT TO BE GUE SSED. NOR THE SAID EVENT CAN BE LEFT AT THE SWEET WILL OF EITHER PARTY TO A LITIGATION. ON THE FACTS OF THE PRESENT CASE, IF THE DATE OF SERVICE ON AN ASSE SSEE IS TAKEN AS THE LEARNED COUNSEL CONTENDS FOR THE PURPOSES OF CALCUL ATION OF LIMITATION, IT WILL BE ON THE SWEET WILL OF THE SUCH ASSESSEE NOT TO COLLECT A COPY FROM THE OFFICE OF HIS LAWYER AND TO EXTEND THE PERIOD O F LIMITATION TO THE EXTENT ONE DESIRES. SUCH AN INTERPRETATION WOULD BE AGAIN ST THE JUDICIAL NORMS AND WILL AMOUNT TRAVESTY OF JUSTICE. IN VIEW OF THE DECISION OF THE HONBLE MADHYA PRADE SH HIGH COURT (SUPRA), THE STANDING COUNSEL HAS TO BE TREATED AS THE RECOGNIZE D AGENT OF THE COMMISSIONER OR THE INCOME TAX DEPARTMENT AND THE D ATE OF RECEIPT OF THE ORDER OF THE HONBLE HIGH COURT BY HIM HAS TO BE TR EATED AS THE DATE OF RECEIPT IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 9 OF THE ORDER BY THE COMMISSIONER OR THE INCOME TAX DEPARTMENT. ACCORDINGLY, THE PENALTY ORDER SHOULD HAVE BEEN PASSED ON OR BEF ORE 31/03/2010 OR 31/08/2010, WHICH IN FACT HAD BEEN PASSED ON 27/09/ 2010 WHICH IS BEYOND THE LIMITATION PERIOD AS PRESCRIBED IN THE INCOME TAX A CT. THEREFORE, THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER IS BARRED BY LIMITATION AND IS LIABLE TO BE QUASHED. ACCORDINGLY, WE DO NOT FIND ANY INFIRMIT Y IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY QUASHED THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER. THUS THE GROUNDS OF THE REVENUE ON THIS ISSUE ARE DISMIS SED. 9. AS REGARDS THE GROUND WHETHER PERMISSION OF T HE JOINT COMMISSIONER IS REQUIRED OR NOT, WE DO NOT CONSIDER IT NECESSARY TO ADJUDICATE SINCE THE ASSESSEE SUCCEEDS ON THE FIRST ISSUE. ACCORDINGLY, IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THE APPEAL OF THE REVENUE IN I.T .A. NO. 01/COCH/2013 IS DISMISSED. 10. NOW WE SHALL TAKE UP THE CROSS OBJECTION IN C.O. NO. 02/COCH/2013 WHERE THE LD. COUNSEL FOR THE ASSESSEE HAD STATED THAT HE DOES NOT HAVE ANY GROUND AND THE SAME ARE SUPPORTIVE IN NATURE AND THEREFORE , IN THE CIRCUMSTANCES AND FACTS OF THE CASE, WE DISMISS THE SAID CROSS OBJECT ION FILED BY THE ASSESSEE. IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 10 11. IN THE RESULT, BOTH THE APPEAL FILED BY THE RE VENUE IN IT(SS)A NO.01/COCH/2013 AND THE CROSS OBJECTION FILED BY TH E ASSESSEE IN C.O. NO. 02/COCH/2013 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09-03-2016 SD/- SD/- ( GEORGE GEORGE.K) (B P JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : COCHIN DATED: 9TH MARCH, 2016 GJ COPY TO: 1. SHRI P.P. UMMERKUTTY, M/S. CITY BUILDERS, BANK R OAD, KANNUR. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -1, KANNUR. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOZH IKODE. 4. THE COMMISSIONER OF INCOME-TAX, KOZHIKODE. 5. DR/ITAT, COCHIN 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN 1.DATE OF DICTATION : 08/03/2016 2.DATE ON WHICH THE TYPED DRAFT IS PLACED 09/03/2016 BEFORE THE DICTATING MEMBER OTHER MEMBER: 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . PS/PS: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER : 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. PS/PS : 6. DATE ON WHICH THE FILE GOES TO BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO HEAD CLERK: 8. DATE ON WHICH THE FILE GOES TO ASSISTANT REGISTR AR 9. DATE OF DISPATCH OF THE ORDER: IT(SS)A NO.01/COCH/2013 & C.O. NO. 02/COCH/2013 11