ITO,Ward-35(3), Kolkata, Kolkata V. Shri Lalit Jhawar, Kolkata

MA 144/KOL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9411 (ITAT-KOLKATA)
• Duration Of Justice: 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 07-09-2012
• Court: TRIBUNAL
• Department Lawyers: K N JANA
• Assessee Lawyers: S M SURANA
• Keywords: Period of limitation

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , , , , . .. . . .. . , ,, , SHRI C.D.RAO, ACCOUNTANT MEMBER ! ! ! ! /AND ''# $% ''# $% ''# $% ''# $%, , , , & & & & SHRI GEORGE MATHAN, JUDICIAL MEMBER !' !' !' !' / M.A.NO.144/KOL/2012 A/O ITA NO . 143/KOL/2012 &%( )*/ ASSESSMENT YEAR : 2003-04 ($, / APPELLANT ) I.T.O., WARD-35(3), KOLKATA - % - - VERSUS - . (./$,/ RESPONDENT ) SHRI LALIT KR.JHAWAR, KOLKATA. (PAN:ACQPJ 5066 M) $, 0 1 / FOR THE APPELLANT: SHRI K.N.JANA ./$, 0 1 / FOR THE RESPONDENT: SHRI S.M.SURANA 2%3 0 /DATE OF HEARING : 05.10.2012 4) 0 /DATE OF PRONOUNCEMENT :.05.10.2012. 5 / ORDER ( (( ( . .. . . .. . ) )) ), , , , PER SHRI C.D.RAO, AM THE ABOVE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE ARISING OUT OF ORDER OF TRIBUNAL DATED 15.05.2012 VIDE ITA NO.143/KOL/2012 PERTAINING TO A.YR.2003-04. 2. BY THIS MISCELLANEOUS APPLICATION THE REVENUES MAIN CONTENTION IS THAT IT MAY BE REITERATED THAT THE PERIOD OF SIX MONTHS PROVIDED FOR IMPOSITION OF PENALTY U/S 275(1)(A) STARTS RUNNING AFTER THE SUCCESSIVE APPEA LS FROM AN ASSESSMENT ORDER HAVE BEEN FINALLY DECIDED BY THE CIT(A) OR THE ITAT. THE PROV ISO TO SECTION 275(1)(A) EXTENDS THE PERIOD FOR IMPOSING PENALTY FROM 6 MONTHS TO 1 YEAR OF THE RECEIPT OF CIT(A)S ORDER AFTER 1.6.2003. THE PROVISO CARVES OUT AN EXCEPTION FROM THE MAIN SECTION IN AS MUCH AS IN CASES WHERE NO APPEAL IS FILED BEFORE THE ITAT T HE AO MUST IMPOSE PENALTY WITHIN A 2 PERIOD OF ONE YEAR OF THE DATE OF RECEIPT OF THE CI T(A)S ORDER. A PROVISO IS MERELY A SUBSIDIARY TO THE MAIN SECTION AND MUST BE CONSTRUE D HARMONIOUSLY WITH THE MAIN PROVISION. THE PROVISO TO SECTION 275(1)(A) DOES NO T NULLIFY THE AVAILABILITY TO THE AO OF THE PERIOD OF LIMITATION OF SIX MONTHS FROM THE END OF THE MONTH WHEN THE ORDER OF THE ITAT IS RECEIVED. THE ABOVE CONTENTION IS ALSO SUPP ORTED BY THE JUDGEMENTS OF THE DELHI HIGH COURT IN THE CASE OF CIT VS MOHAIR INVES TMENT & TRADING CO. ITA NO.511/2011 DTD.30 TH SEP., 2011 & MADRAS HIGH COURT IN THE CASE OF RAYA LA CORPORATION PVT. LTD. VS UNION OF INDIA & ORS. REPO RTED IN 288 ITR 452. 3. KEEPING IN VIEW OF THE ABOVE SUBMISSIONS THE LD . DR APPEARING ON BEHALF OF THE REVENUE BY POINTING OUT THE ORDER OF TRIBUNAL A T PARA-4 CONTENDED THAT THIS TRIBUNAL HAS DISMISSED APPEAL OF THE REVENUE BY OBS ERVING THAT THE PENALTY ORDER PASSED BY THE REVENUE IS BEYOND DUE DATE PRESCRIBED U/S 275(1)(A) OF THE IT ACT. THEREFORE, HE REQUESTED TO RECALL THE ORDER OF THIS TRIBUNAL DATED 15.05.2012. 4. ON THE OTHER HAND, THE LD. AR APPEARING ON BEHA LF OF THE ASSESSEE SUBMITTED THAT IN THE SAME PARAGRAPH NO.4 OF THE TRIBUNALS O RDER THE TRIBUNAL HAS ALSO DECIDED THE ISSUE ON MERITS. THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD AS POINTED OUT BY THE REVENUE. HENCE HE REQUESTED UPHELD THE ORDER OF THE TRIBUNAL SINCE THE MATTER HAS BEEN DECIDED EVEN ON MERITS. HE FURTHER RELIED ON THE DECISION OF THE ITAT, AMRITSAR BENCH IN THE CASE OF TARLOCHAN SINGH & SON S (HUF) VS ITO (2008) 114 TTJ (ASR) 82. THEREFORE HE REQUESTED TO DISMISS THE MIS CELLANEOUS APPLICATION OF THE REVENUE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT THE ABOVE SUBMISSIONS MADE BY THE AO HAS NOT BEEN BROUGHT TO THE NOTICE OF THE TRIBUNAL BY THE L D. DR AT THE TIME OF HEARING OF THE APPEAL. IT IS FURTHER OBSERVED THAT WHEN THE BENCH DIRECTED THE LD. DR TO ASCERTAIN THE DATE OF SERVICE OF THE ORDER OF LD. CIT(A) THEN ALS O THE REVENUE HAS NOT POINTED OUT THAT THE ASSESSEE WENT IN APPEAL BEFORE ITAT AND REQUEST ED TO KEEP THE PENALTY PROCEEDINGS IN ABEYANCE BY HIS LETTER DATED 26.11.2 007. IF WE CONSIDER THE SUBMISSIONS MADE BY THE ASSESSEE NOW IN THE MISCELL ANEOUS APPLICATION IT WILL TANTAMOUNT TO REVIEW OF OUR ORDER WHICH THE TRIBUNA L IS NOT HAVING U/S 254(2) OF THE IT ACT. SINCE THE TRIBUNAL HAS DECIDED THE ISSUE EV EN ON MERITS ALSO WE FIND NO 3 INTERFERENCE IN THE ORDERS OF THE LD. TRIBUNAL WHIC H IS NOT WITHIN THE PURVIEW OF SECTION 254(2) OF THE IT ACT AND THEREFORE WE CONSIDER IT F IT TO DISMISS THE MISCELLANEOUS APPLICATION OF THE REVENUE WHICH HAS RAISED THE ISS UE ON LIMITATION ONLY. 6. IN THE RESULT THE MISCELLANEOUS APPLICATION OF R EVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.10.2012. SD/- SD/- ''# $% ''# $% ''# $% ''# $%, , , , & & & & GEORGE MATHAN, JUDICIAL MEMBER . .. . . .. . , , , , , C.D.RAO, ACCOUNTANT MEMBER. ( (( ( ) )) ) DATE: 05.10.2012. 5 0 .&&6 76)8- COPY OF THE ORDER FORWARDED TO: 1. SHRI LALIT KR.JHAWAR, 77, N.S.ROAD, 3 RD FLOOR, R.NO.312, KOLKATA-700001. 2 I.T.O., WARD-35(3), KOLKATA 3. CIT XII, KOLKATA 4. CIT(A)-XX, KOL KATA 5. . CIT(DR), KOLKATA. /6 .&/ TRUE COPY, 5%2/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)