ITO,Ward-46(3), Kolkata, Kolkata V. Prem Shankar Mishra, Howrah

MA 41/KOL/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0013 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 11-04-2012
• Court: TRIBUNAL
• Section: 143(3); 246

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND ! ' ! , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] MA. NO. 41/KOL/2012 # # # # / I.T.A NO. 1585/KOL/2009 '$% &' '$% &' '$% &' '$% &'/ // / ASSESSMENT YEAR: 2001-02 INCOME-TAX OFFICER, WD-46(3), KOLKATA VS. PREM SHA NKAR MISHRA ( /APPLICANT ) ()*+/ RESPONDENT ) , - /FOR THE APPLICANT: SHRI DILIP KR. RAKSHIT, SR. D R )*+ , - /FOR THE RESPONDENT: SHRI PREM SHANKAR MISHRA DATE OF HEARING : 15.03.2013 DATE OF PRONOUNCEMENT: 15.03.2013 . / ORDER PER MAHAVIR SINGH, JM: BY WAY OF THIS MISC. APPLICATION THE REVENUE/APPLIC ANT HAS RAISED THE ISSUE THAT THE TRIBUNAL IN ITA NO.1581/KOL/2009 VIDE ORDER DATED 2 5.10.2011 HAS PUT EMPHASIZES ONLY ON TIME PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE ITAT WAS RECEIVED BY CIT I.E. ON 30.06.2007, AS PER THE PROV ISIONS OF SECTION 275(1)(A) OF THE INCOME-TAX ACT, 1961, (HEREINAFTER REFERRED TO AS THE ACT). ACCORDING TO REVENUE, THE PENALTY ORDER DATED 31.03.2008 WAS PASSED WELL IN ADVANCE OF THE SPECIF IED DATE. HENCE, THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. 2. WE HAVE CONSIDERED THE ARGUMENTS OF LD. SR. DR A ND THE MISC. PETITION. WE HAVE ALSO GONE THROUGH THE TRIBUNALS ORDER PARA 7, 7.1 AND 7 .2 WHICH NARRATES THE FACTS AND LEGAL POSITION AS UNDER: 7. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, THE UNDISPUTED FACTS APPEARING FROM THE REC ORDS ARE AS UNDER :- I) ORDER PASSED U/S 143(3) ON 31.03.2004 WHICH IS A PPEARING AT PAGE 7 OF THE PAPER BOOK II) ORDER PASSED BY LD. CIT(A) (IN APPEAL AGAINST O RDER U/S 143(3) ON 04.01.2005 WHICH IS APPEARING AT PAGE 11 OF THE PAPER BOOK 2 MA NO. 41/K/2012 PREM SHANKAR MISHRA A.Y.2001-02 III) ORDER PASSED BY LD. ITO TO GIVE EFFECT TO ORDE R DT. 04.01.2005 OF LD. CIT(A) ON 20.01.2005 WHICH IS APPEARING AT PAGE 18 & 19 OF TH E PAPER BOOK IV) ORDER PASSED HY HONBLE TRIBUNAL (IN ASSESSEES APPEAL AGAINST LD. CIT(A)S ORDER) ON 10.11.2006 WHICH IS APPEARING AT PAGE 22 OF THE PAPER BOOK V) ORDER OF HONBLE TRIBUNAL RECEIVED BY ASSESSEE-C OMPANY ON 17.11.2006 WHICH IS APPEARING AT PAGE 23 OF THE PAPER BOOK VI) ORDER U/S 254 PASSED BY LD. ITO TO GIVE EFFECT TO ORDER OF HONBLE TRIBUNAL ON 12. 12.2007 WHICH IS APPEARING AT PAGE 24 OF THE PA PER BOOK. VII)ORDER PASSED U/S 271(1)(C) OF THE I T ACT DATED 31.08.2008 7.1. THE PROVISION OF SECTION 275(1)(A) OF THE I.T ACT, 1961 READS AS UNDER :- BAR OF IIMITATION FOR IMPOSING PENALTIES. 275 (I) NO ORDER IMPOSING A PENALTY UNDER THIS CHAP TER SHALL BE PASSED [(A) IN A CASE WHERE THE RELEVANT ASSESSMENT OR OTH ER ORDER IS THE SUBJECT RNATTER OF AN APPEAL TO THE COMMISSIONER (APPEALS) UNDER SE CTION 246 [OR SECTION 246A] OR AN APPEAL TO THE APPELLATE TRIBUNAL UNDER SECTIO N 253, AFTER THE EXPIRY OF THE FNANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COU RSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPL ETED, OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMISSI ONER (APPEALS) OR, AS THE CASE MAY BE, THE APPELLATE TRIBUNAL IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER: [PROVIDED THAT IN A CASE WHERE THE RELEVANT ASSESSM ENT OR OTHER ORDER IS THE SUBJECTMATTER OF AN APPEAL TO THE COMMISSIONER(APP EALS) UNDER SECTION 246 OR SECTION 246A, AND THE COMMISSIONER (APPEALS) PASSES THE ORDER ON OR AFTER THE 1 ST DAY OF JUNE, 2003 DISPOSING OF SUCH APPEAL, AN OR DER IMPOSING PENALTY SHALL BE PASSED BEFORE THE EXPIRY OF THE FNANCIAL YEAR I N WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR IMPOSITION OF PENALTY HA S BEEN INITIATED, ARE COMPLETED, OR WITHIN ONE YEAR FROM THE END OF THE FNANCIAL YEAR IN WHICH THE ORDER OF THE COMMISSIONER (APPEALS) IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMSSIONER, WHICHEVER IS LATER;] 7.2. ON PERUSAL OF THE ABOVE FACTS IN THE LIGHT OF THE PROVISIONS OF SUB-SECTION (1)(A) OF SECTION 275 OF THE IT ACT WE ARE OF THE VIEW THAT T HE LAST DATE FOR COMPLETION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE IT ACT WI11 BE SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE COMMSSIONER (APPEALS) OR, A S THE CASE MAY BE, THE APPELLATE TRIBUNAL IS RECEIVED BY THE CHIEF COMMISSIONER OR C OMMISSIONER. IN THIS CASE AS PER THE CERTIFICATE ISSUED BY ASSTT. REGISTRAR OF TRIBUNAL, ITAT, KOLKATA AS ASSISTANT PUBLIC LNFORMATION OFFICER THE ORDER OF THE TRIBUNAL IN AS SESSEES CASE WAS SENT TO LD. COMMISSIONER OF INCOME-TAX, WB-XVI, AAYAKAR BHAVAN, 2 ND FLOOR. ROOM NO.39, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 ON 4. 1 2.2006. THEREFORE WE ARE OF THE VIEW THAT THE REVENUE IS SUPPOSED TO PASS PENALTY ORDER U/S 2 71(1)(C) OF THE I.T ACT BEFORE 30.06.2007. IN THIS CASE THE PENALTY ORDER U/S 271( 1)(C) OF THE 1T ACT HAS BEEN PASSED BY AO ON 31.03.2008 WHICH IS BEYOND THE TIME PRESCRIBE D U/S 275 (1)(A) OF THE I.T ACT. THEREFORE WE QUASH THE PENALTY ORDER PASSED BY AO U /S 271 (1)(C) OF THE IT ACT BY OBSERVING THE SAME AS PASSED BEYOND THE DATES PRESC RIBED U/S 275 (1)(A) OF THE IT ACT. 3. WE FIND THAT TRIBUNAL HAS TAKEN A VIEW AND THERE ARE DECISIONS IN FAVOUR OF REVENUE AND AGAINST REVENUE. ACCORDING TO US, THE TRIBUNAL HAS TAKEN A VIEW WHICH CAN HAVE A DEBATE BUT 3 MA NO. 41/K/2012 PREM SHANKAR MISHRA A.Y.2001-02 DEBATABLE ISSUES CANNOT BE RECTIFIED IN MISC. PETIT ION U/S. 254(2) OF THE ACT. THE ISSUE BEING DEBATABLE, WE NEED NOT TO GO INTO THE ISSUE RAISED BY THE REVENUE IN THIS MISC. PETITION. ACCORDINGLY, THE SAME IS DISMISSED. 4. IN THE RESULT, THE MISC. APPLICATION OF REVENUE IS DISMISSED. 5. ORDER IS DICTATED AND PRONOUNCED IN THE OPEN COU RT. SD/- SD/- , ! ' ! ! ' ! ! ' ! ! ' ! , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15TH MARCH, 2013 /0 '$12 '3 JD.(SR.P.S.) . , ''4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT ITO, WARD-46(3), KOLKATA. 2 )*+ / RESPONDENT SHRI PREM SHANKAR MISHRA, B-84, SHRE E KUNJ, 51, DOBSON ROAD, HOWRAH-711101. 3 . '.$ ( )/ THE CIT(A), KOLKATA 4. 5. '.$ / CIT KOLKATA 4<'= '$ / DR, KOLKATA BENCHES, KOLKATA )4 '/ TRUE COPY, .$/ BY ORDER, ! 2 /ASSTT. REGISTRAR .