9911796707
TMI Blog2014 (11) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter) vide separate orders, i.e., for the relevant assessment years, of even date, being 29.04.2009. 2. Opening the arguments for and on behalf of the assessee, it was submitted by the ld. Authorized Representative (AR), the assessee's counsel, that the levy of penalty in the instant case suffers from a fundamental defect in-as-much as the same stands imposed without awaiting the disposal of the assessee's application/s u/s.273AA to the competent authority, being the Commissioner of Income-tax-20, Mumbai ('CIT' for short), made on 24.04.2009 for all the years. A copy of the said application was also supplied to the Assessing Officer (A.O.), who however proceeded in the matter, levying penalty for all the years vide orders of even dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication afresh after the disposal of the assessee's application/s u/s.273AA by the ld. CIT, for which no time limit stands provided by the statute. The ld. Departmental Representative (DR) would, on the other hand, submit that the Tribunal, though within its powers to set aside the impugned penalty on any ground/s, cannot set-aside the orders imposing the same where the penalty order that may be passed by the A.O. in the set-aside proceedings is not saved by law as to time limitation. In rejoinder, the ld. AR; the ld. DR having raised the issue of time limitation, would submit that the tribunal is competent to set aside any order which is a subject matter of appeal before it for any reason it deems proper in the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CIT on 14.06.2012 and 26.06.2012 for follow-up in the matter and to verify the entries in the Tapal Register maintained by the said office, to find that the application dated 23.04.2009 had been actually filed on 24.04.2009. That as per the practice in the Department, inward number is not provided on any communication except on the receipt of the return of income. This affidavit, which appears to have been furnished at the instance of the tribunal, was taken cognizance of by the Bench when the appeals came up for hearing last; the tribunal noting as under (refer order sheet entry dated 16.07.2014)): 'The assessee has filed an affidavit dated 15.07.2014 mentioning that application u/s.273AA has been filed with the CIT-20, Mumbai on 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e., in view of the non-disposal of the assessee's application/s u/s.273AA, validly made. Despite persuasions to the contrary by the ld. AR, we are unable to bring ourselves to agree therewith. There is no provision in section 275, which grants extended time (for the levy of penalty) where the order passed in the proceedings during the course of which the penalty proceedings had been initiated is being contested before the first or the second appellate authority, for keeping the penalty proceedings in abeyance for want of disposal of an application u/s.273AA, or section 273A for that matter. The two proceedings are independent of each other, and perhaps for the reason that, unlike the outcome of the quantum proceedings, which has a direct b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits? Further, the assessee's case on merits, as sought to be made before us, also appears as not without merit and requires consideration. We may though mention that the apex court in Pooran Mal v. DIT (Inv.) [1974] 93 ITR 505 (SC) explained that it is the relevancy of the evidence and not its legality per se which is material/crucial to its admissibility under the Indian jurisprudence, including the proceedings under the Act. We, accordingly, only consider it proper under the circumstances that the matter is restored back to the file of the A.O. for consideration of the assessee's case de novo, i.e., after the disposal of the assessee's application/s u/s.273AA for the relevant years. In this regard, we may also consider the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O., in the event of the assessee's application/s being not granted by the ld. CIT, shall forthwith proceed with the penalty proceedings, and adjudicate the same after hearing the assessee, considering his objections as raised before him per a speaking order/s and in accordance with law. We may further clarify that we have not and do not purport to make any observation on the merits of the assessee's case, which we have in fact not considered at all, and doing which may result in prejudicing its case either way. The sole premise and purpose of the set aside is to enable the assessee to claim immunity, statutorily provided u/s.273AA, i.e., on merits, and which stands precluded in the facts and circumstances of the case, and thereby cause to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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