ASHOK VOHRA (HUF), MUMBAI V. ACIT CC 34,

ITSSA 63/MUM/2011

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9210 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-04-2013
• Assessment Year: misc
• Appeal Filed On: 05-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER IT(SS)A NO. 63/MUM/2011 (BLOCK PERIOD : 01.04.1996 TO 29.01.2003) ASHOK VOHRA (HUF) ACIT, CENTRAL CIRCLE-34 SOMRAJ COTTAGE, GREEN FIELD ESTATE MUMBAI A.B. NAIR ROAD, OPP. JUHU P.O. VS. JUHU, MUMBAI 400049 PAN - AADHA4098M APPELLANT RESPONDENT IT(SS)A NO. 64/MUM/2011 (BLOCK PERIOD : 01.04.1996 TO 29.01.2003) SHRI ASHOK VOHRA (LEGAL HEIR OF LATE RENUKA VOHRA) ACIT, CENTRAL CIRCLE-34 MUMBAI SOMRAJ COTTAGE, GREEN FIELD ESTATE A.B. NAIR ROAD, OPP. JUHU P.O. VS. JUHU, MUMBAI 400049 PAN - ACBPV9536D APPELLANT RESPONDENT APPELLANT BY: SHRI ANUJ KISNADWALA RESPONDENT BY: MISS NEERAJA PRADHAN DATE OF HEARING: 25.04.2013 DATE OF PRONOUNCEMENT: 25.04.2013 O R D E R PER D. MANMOHAN, V.P. THESE APPEALS ARE FILED AT THE INSTANCE OF THE ASSE SSEES AGAINST THE ORDERS PASSED BY THE CIT(A)-36 DATED 22.09.2011 AND THEY PERTAIN TO THE BLOCK PERIOD 01.04.1996 TO 31.03.2003. 2. PENALTY LEVIED UNDER SECTION 158BFA(2) OF THE INCOM E TAX ACT IS CHALLENGED BEFORE US. AT THE TIME OF HEARING THE LE ARNED COUNSEL FOR THE ASSESSEE FILED ADDITIONAL GROUND CHALLENGING JURISD ICTION OF THE AO IN LEVYING PENALTY AND INITIATING PENALTY PROCEEDINGS AFTER TH E PERIOD OF LIMITATION IT(SS)A NO. 63 & 64/MUM/2011 SHRI ASHOK VOHRA (HUF) 2 PROVIDED UNDER SECTION 158BFA(3)(C) OF THE ACT. SIN CE IT IS A PURE LEGAL ISSUE, THE SAME WAS TAKEN UP FOR CONSIDERATION AND THE LEA RNED D.R. WAS CALLED UPON TO PRODUCE THE ORIGINAL ASSESSMENT RECORDS TO VERIFY THE VERACITY OF THE CONTENTIONS OF THE ASSESSEE. THE CASE WAS ACCORDING LY ADJOURNED FROM TIME TO TIME BUT THE LEARNED D.R. COULD NOT PRODUCE THE RECORDS AND IN THIS REGARD SHE SUBMITTED THAT THE FILES WERE TRANSFERRE D TO ANOTHER AO AND HENCE IT WAS NOT IMMEDIATELY TRACEABLE. 3. HAVING REGARD TO SMALLNESS OF THE AMOUNTS I.E. ` 1,87,154/- IN THE CASE OF SHRI ASHOK VOHRA (LEGAL HEIR OF LATE RENUKA VOHR A) AND ` 1,43,013/- IN THE CASE OF ASHOK VOHRA, HUF, WE PROCEED TO DISPOSE OF THE ISSUE ON THE STRENGTH OF THE MATERIAL AVAILABLE ON RECORDS. 4. THE CASE OF THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT THE QUANTUM APPELLATE ORDER IN THE CASE OF HUF AS WELL AS INDIV IDUAL WERE PASSED ON 07.04.2008 AND AS PER SECTION 158BFA(3)(C) OF THE I T ACT NO ORDER IMPOSING A PENALTY CAN BE PASSED AFTER EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMISSIONER (APPEA LS) WAS PASSED. IN THE INSTANT CASE THE ASSESSEE HAVING NOT PREFERRED ANY APPEAL AGAINST THE ORDERS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), THESE ORDERS HAVE BECOME FINAL AND HENCE THE AO HAS TO COMPLETE THE P ENALTY PROCEEDINGS WITHIN SIX MONTHS FROM THE DATE THE CIT(A) DISPOSED OF THE APPEALS. THE ORDERS HAVING BEEN PASSED ON 07.04.2008 IT COULD RE ASONABLY BE ASSUMED THAT THE SAID ORDERS COULD HAVE BEEN SERVED UPON TH E CONCERNED OFFICERS BEFORE JUNE, 2008 IN WHICH EVENT PENALTY PROCEEDING S HAVE TO BE COMPLETED BY THE END OF 2008, WHEREAS IN THE CASES BEFORE US PENALTY ORDER UNDER SECTION 158BFA(2) OF THE ACT, IN BOTH THE CASES, WE RE PASSED ON 30.03.2010 AND HENCE THE PENALTY ORDERS ARE BARRED BY LIMITATI ON. AN ORDER PASSED ON 30.03.2010 WOULD BE VALID ONLY IN THE EVENT OF PROV ING THAT THE ORDERS PASSED BY THE CIT(A) WERE SERVED UPON THE CONCERNED OFFICERS AFTER 30.09.2009 WHEREAS THERE IS NOTHING ON RECORD TO PR OVE THAT THE ORDERS WERE RECEIVED AFTER 30.09.2010. IN FACT, RECKONED FROM T HE DATE ON WHICH THE CIT(A) DISPOSED OF THE QUANTUM APPEALS IT IS UNTHIN KABLE THAT IT WOULD TAKE ABOUT 1 YEARS FOR THE ORDERS TO BE SERVED UPON THE CONCERNED OFFICERS AND IT(SS)A NO. 63 & 64/MUM/2011 SHRI ASHOK VOHRA (HUF) 3 HENCE A PRESUMPTION CAN BE RAISED THAT THE PENALTY ORDERS ARE BARRED BY LIMITATION. 5. WE HAVE HEARD THE LEARNED D.R. AND ALSO THE LEARNED COUNSEL FOR THE ASSESSEE AND CAREFULLY PERUSED THE RECORD. HAVING R EGARD TO THE PECULIAR CIRCUMSTANCE OF THE CASE WE ARE OF THE VIEW THAT TH E PENALTY ORDERS PASSED BY THE AO DESERVE TO BE DISMISSED ON THE GROUND OF LIMITATION BY HOLDING THAT RECKONED FROM THE DATE OF DISPOSAL OF THE QUAN TUM APPEALS BY THE CIT(A), PENALTY PROCEEDINGS CANNOT BE INITIATED OR COMPLETED ON 31.03.2010 AND, CONSEQUENTLY, THEY ARE BARRED BY LIMITATION. T HE LEARNED D.R. IS, HOWEVER, GIVEN LIBERTY TO FILE A MISCELLANEOUS APPL ICATION IF IT CAN BE PROVED THAT PENALTY PROCEEDINGS ARE NOT BARRED BY LIMITATI ON UNDER SECTION 158BFA(3) OF THE INCOME TAX ACT. 6. SINCE THE APPEALS ARE DISMISSED ON THE PRELIMINARY GROUND, IT IS NOT NECESSARY TO GO INTO THE OTHER GROUNDS URGED BY THE ASSESSEES. WITH THESE OBSERVATIONS, AS PRONOUNCED IN THE OPEN COURT, THE APPEALS FILED BY THE ASSESSEES ARE TREATED AS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH APRIL, 2013. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 25 TH APRIL, 2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 36, MUMBAI 4. THE CIT CENTRAL-1, MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.