Shri Sevantibhai G.Patel, Ahmedabad V. The Dy.CIT.,Circle-7, Ahmedabad

ITSSA 293/AHD/2012

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2868 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-01-2017
• Assessment Year: misc
• Appeal Filed On: 13-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: UMAID SINGH BHATTI
• Keywords: Assessment record

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ IT(SS)A.NO.293/AHD/2012 / ASSTT. YEAR: BLOCK PERIOD SHRI SEVANTIBHAI G. PATEL 8, AMALTAS BUNGALOWS NR.SANDESH PRESS BODAKDEV, AHMEDABAD PAN ; AEQPP 0940 G VS DCIT, CIR.7 AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI UMAIDSINGH BHATTI, REVENUE BY : SHRI K. MADHUSUDAN, SR.DR / DATE OF HEARING : 04/01/2017 / DATE OF PRONOUNCEMENT: 06/01/2017 $%/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)- XIV, AHMEDABAD DATED 4.4.2012 PASSED FOR THE BLOCK PERIOD. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT LD.CI T(A) HAS ERRED IN CONFIRMING PENALTY OF RS.3,70,000/- IMPOSED UNDER S ECTION 158BFA(2) OF THE INCOME TAX ACT, 1961. 3. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET SUBMITTED THAT PENALTY ORDER WAS PASSED BY THE AO IS TIME BARRED, AND THER EFORE, IT DESERVES TO BE QUASHED. IN ORDER TO VERIFY THIS CLAIM OF THE ASSE SSEE, BENCH HAS PASSED THE FOLLOWING ORDER ON THE PREVIOUS DATE OF HEARING: 31.08.2016 PRESENT: ASSESSEE BY-SHRI U.S. B HATTI, AR REVENUE BY-SHRI SUMIT KUMAR VARMA, CIT-DR IN THE FIRST GROUND OF APPEAL THE ASSESSEE HAS PLEA DED THAT PENALTY PASSED BY THE AO IS TIME BARRED. IN ORDER TO DEMONSTRATE T HAT PENALTY ORDER /S TIME BARRED, THE ID.COUNSEL FOR THE ASSESSEE CONTENDED T HAT AN ASSESSMENT IT(SS)A NO.293/AHD/2012 2 ORDER WAS PASSED ON 29.9.2000. THE DISPUTE TRAVELLE D UPTO THE TRIBUNAL, AND THE TRIBUNAL HAS DECIDED THE APPEAL BEARING NO. LT(SS)A.NO.28/AHD/2002. THE TRIBUNAL HAS DECIDED TH IS ISSUE ON 8.2.2007. THE AO HAS INITIATED PENALTY PROCEEDINGS UNDER SECT ION 158BFA(2) ON 29.9.2000, BUT KEPT THE PROCEEDING IN ABEYANCE DURI NG THE PENDENCY OF APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED MA BEARING NO.117/AHD/2007 A ND THE TRIBUNAL RECALLED ITS ORDER DATED 8.2.2007 ON 4.1.2008. TH E TRIBUNAL HAS AGAIN DECIDE THE APPEAL OF THE ASSESSEE ON 16.5.2008. THE ID.AO HAS REVIVED THE PENALTY PROCEEDINGS VIDE NOTICE DATED 14.2.2009 AND IMPOSED PENALTY VIDE ORDER DATED 26.2.2009. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT PENA LTY OUGHT TO BE IMPOSED UPON THE ASSESSEE WITHIN SIX MONTHS FROM TH E DATE OF THE TRIBUNAL'S ORDER I.E. 8.2.2007. IF THE AO FAILED TO REVIVE THE PENALTY PROCEEDINGS, WITHIN SIX RNONTHS, THEN THE PROCEEDIN G WOULD ABATE AND AFTER EXPIRY OF LIMITATION, THE AO CANNOT REVIVE THE PENA LTY PROCEEDINGS AFTER SECOND ORDER OF THE TRIBUNAL. ON VERIFICATION OF THE RECORD, I CANNOT FIND, WHEN THE TRIBUNAL ORDER WAS SERVED UPON THE COMMISSIONER, BECAUSE, LIMITATION H AS TO BE COUNTED FROM THE DATE OF SERVICE UPON THE ID.COMMISSIONER. FACED WITH THIS SITUATION, ADJOURN THE HEARING FOR 4 TH JANUARY, 2017. THE ID.DR SHALL PRODUCE ASSESSMENT RECORD ALONG WITH EVIDENCE OF SERVICE OF THE TRIBUNAL'S ORDER DATED 8.2.2007 UPON THE DEPARTMENT. COPY OF THIS ORDER BE SUPPLIED TO BOTH THE PARTIES. SD/- (JM) 4. THE LD.DR IS UNABLE TO PRODUCE ANY MATERIAL IN C OMPLIANCE OF THE ABOVE DIRECTIONS. HOWEVER THE ASSESSEE HAS OBTAINE D A REPORT FROM THE ITAT EXHIBITING THE FACT THAT ORDER OF THE TRIBUNAL DATE D 8.2.2007 WAS DISPATCHED VIDE FORWARDING LETTER DATED 1.6.2007. THIS ORDER WAS DULY SERVED UPON THE CIT(A) ON CIT ON 28.6.2007. PHOTO COPY OF THIS FOR WARDING LETTER ALONG WITH ANNEXURE EXHIBITING THE DETAILS OF 19 APPEALS IN WH OSE ORDERS WERE ISSUED BY THE TRIBUNAL HAS BEEN PLACED ON RECORD. IT(SS)A NO.293/AHD/2012 3 5. I HAVE PERUSED THESE MATERIALS AND ARRIVED AT A CONCLUSION THAT THIS ORDER WAS SERVED UPON THE LD.COMMISSIONER ON 28.6.2 007. THERE IS NO DISPUTE WITH REGARD TO THE PROPOSITION THAT THE AO OUGHT TO HAVE REVIVED THE PENALTY PROCEEDINGS WITHIN SIX MONTHS FROM THE SERV ICE OF THE TRIBUNALS ORDER. HE HAS TO FINALIZE THE PENALTY PROCEEDINGS, OTHERWISE THE PROCEEDING WOULD ABATE. IN THE PRESENT CASE, LIMITATION FOR I MPOSITION PENALTY UPON THE ASSESSEE WAS 31.12.2007 I.E. SIX MONTHS WOULD EXPIR E ON 31.12.2007. THE LD.AO HAS REVIVED PENALTY PROCEEDINGS VIDE NOTICE D ATED 14.2.2009. IN OTHER WORDS, BEFORE THE TRIBUNAL HAS RECALLED ITS ORDER T HE LIMITATION FOR VISITING THE ASSESSEE WITH PENALTY HAS ALREADY EXPIRED. TIME LI MIT FOR FILING MA UNDER SECTION 254(2) OF THE ACT IS FOUR YEARS. EARLIER T RIBUNAL ORDER DATED 8.2.2007 WAS INTACT WHEN PENALTY PROCEEDINGS INITIATED BY TH E AO BEING BECOME TIME BARRED. CONSIDERING ALL THESE ASPECTS, I ALLOW THE APPEAL OF THE ASSESSEE AND QUASH THE PENALTY ORDER. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 6 TH JANUARY, 2017 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 06/01/2017