Jt. Commissioner of Income Tax, GONDA V. Smt. Meenu Agarwal (L/h Late Sri Ratan Agarwal), Bahraich

MA 118/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3660 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK SETH
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.118LKW/2015 [ARISING OUT OF ITA NO.388/LKW/2012] ASSESSMENT YEAR:2008-09 ACIT RANGE GONDA V. SMT. MEENU AGARWAL L/H OF LATE SHRI. RAM RATAN AGARWAL PROP. M/S RATAN MEDICAL HALL CHOWK, BAHRAICH PAN:ABAPA2181M (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. AMIT NIGAM, D.R. RESPONDENT BY: SHRI. ASHOK SETH, FCA DATE OF HEARING: 06 11 2015 DATE OF PRONOUNCEMENT: 20 11 2015 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 28.4.2015 IN I.T.A. NO. 388/LKW/2012 WITH THE SUBMISSION THAT THE TRIBUNAL HAS WRONGLY SUBSCRIBED THE VIEW OF THE LD. CIT(A) THAT PENALTY ORDER IS TIME BARRED AND ACCORDINGLY IT WAS QUASHED; WHEREAS AS PER RECORD AFTER RECEIPT OF THE PROPOSAL FOR INITIATING THE PENALTY UNDER SECTION 271E OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') FROM THE ASSESSING OFFICER, A SHOW CAUSE NOTICE UNDER SECTION 271E OF THE ACT DATED 17.1.2011 WAS ISSUED. THEREFORE, PENALTY WAS INITIATED IN TIME, AS THE LIMITATION FOR DISPOSAL OF PENALTY WAS AVAILABLE WITH THE ASSESSING OFFICER UPTO 31.7.2011 AND THE PENALTY WAS LEVIED ON 27.7.2011 I.E. WITHIN THE PERIOD OF LIMITATION. 2. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS SUBMITTED THAT THE TRIBUNAL HAS EXAMINED THIS ASPECT IN DETAIL IN ITS ORDER. :- 2 -: THEREFORE, THE FINDINGS OF THE TRIBUNAL CANNOT BE DISTURBED. MOREOVER, THE TRIBUNAL HAS TAKEN A PARTICULAR VIEW IN THE LIGHT THE FACTS AVAILABLE ON RECORD, THEREFORE, THE ORDER CANNOT BE REVIEWED UNDER THE GARB OF RECTIFICATION. 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL VIS--VIS MISCELLANEOUS APPLICATION, WE FIND THAT THE TRIBUNAL HAS TAKEN INTO ACCOUNT THE DATES ON WHICH PROPOSAL WAS INITIATED AND PENALTY ORDER WAS PASSED. THE TRIBUNAL DISCUSSED ALL THESE DATES IN PARA 5 OF ITS ORDER AND RELYING UPON THE ORDERS OF THE TRIBUNAL IN THE CASE OF JCIT VS. M/S ASHOK KUMAR PATHAK CONTRACTOR, BAHRAICH IN I.T.A. NO. 602/LKW/2012, THE TRIBUNAL HAS HELD THAT PENALTY ORDER IS BARRED BY TIME AND ACCORDINGLY CONFIRMED THE ORDER OF THE LD. CIT(A) CANCELLING THE PENALTY. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE EXTRACTED HEREUNDER:- 5. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY THE ASSESSMENT WAS COMPLETED ON 24.12.2010 AND REFERENCE TO THE ADDITIONAL COMMISSIONER OF INCOME-TAX WAS MADE BY THE ASSESSING OFFICER ON 30.12.2010. COPY OF THE REFERENCE LETTER IS PLACED ON RECORD AND THE PENALTY ORDER WAS PASSED ON 28.7.2012 WHICH IS CLEARLY AFTER THE EXPIRY OF THE PERIOD OF SIX MONTHS FROM THE ACTION INITIATED FOR LEVYING THE PENALTY. THIS ASPECT WAS EXAMINED BY US IN THE CASE OF JCIT VS. M/S ASHOK KUMAR PATHAK CONTRACTOR, BAHRAICH IN I.T.A. NO. 602/LKW/2012, IN WHICH THE TRIBUNAL HAS TAKEN A VIEW THAT IF THE PENALTY ORDER IS PASSED AFTER A PERIOD OF SIX MONTHS FROM THE ACTION INITIATED FOR LEVYING THE PENALTY, THE PENALTY ORDER IS BARRED BY TIME. THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL IS EXTRACTED HEREUNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE RELEVANT PROVISIONS ARE CONTAINED IN CLAUSE (C) OF SUB SECTION (1) OF SECTION 275, WHICH ARE REPRODUCED BELOW: :- 3 -: (C) IN ANY OTHER CASE, 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 THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHICHEVER PERIOD EXPIRES LATER. 6.1 FROM THE ABOVE PROVISIONS, IT IS SEEN THAT PENALTY ORDER IS TIME BARRED IN THE PRESENT CASE ON THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ACTION FOR PENALTY IS INITIATED. IN THE FACTS OF THE PRESENT CASE, THE DATE OF REFERENCE BY THE ASSESSING OFFICER TO ADDL. C.I.T. FOR IMPOSITION OF PENALTY IS 21/10/2010 AND IF THE PERIOD OF SIX MONTHS IS COUNTED FROM 31.10.2010, THE SAME EXPIRES ON 30/06/2011 AND THE PENALTY ORDER HAS BEEN PASSED ON 28TH JULY, 2011 AND HENCE, THE PENALTY ORDER IS TIME BARRED AS PER THE PROVISIONS OF SECTION 275 OF THE ACT. WE HOLD ACCORDINGLY AND PENALTY ORDER IS QUASHED BEING TIME BARRED. 4. IN THE LIGHT OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT THE TRIBUNAL HAS TAKEN A CONSCIOUS VIEW IN THE LIGHT OF THE FACTS AVAILABLE ON RECORD, THEREFORE, THE VIEW OF THE TRIBUNAL CANNOT BE REVIEWED UNDER THE GARB OF RECTIFICATION. SINCE NO ERROR APPARENT IS NOTICED, WE DECLINE TO INTERFERE WITH THE ORDER OF THE TRIBUNAL. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:20 TH NOVEMBER, 2015 JJ:1611 :- 4 -: COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR