9911796707
TMI Blog2014 (11) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... tested 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 bearing on the levy or otherwise of penalty, the proceedings u/s 273A/273AA stand on altogether different footings - the penalty orders cannot be considered as being legally infirm in-as much as the AO was duty bound to have completed the penalty proceedings, validly initiated, within the statutory time period there-for - the provisions of section 273AA and section 271(1)(c) are independent of each other - therefore, the CIT should have proceeded in the matter, i.e., in deciding on the assessee’s application u/s.273AA on merits, unguided and uninfluenced by the fact that the penalty stands already levied – thus, the matter is to be remitted back to the AO for fresh consideration – Decided in favour of assessee. - ITA Nos. 2286/Mum/2011, 2287/Mum/2011, 2288/Mum/2011 , 2289/Mum/2011 , 2290/Mum/2011, 2291/Mum/2011, 2292/Mum/2011, 2293/Mum/2011, 229 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tlement Commission is saved from any panel action. The first appellate authority has merely endorsed the findings by the A.O., disregarding the assessee s contention made with reference to the non disposal of its application/s u/s. 273AA. The ld. AR was, however, in agreement to the matter being restored back to the file of the A.O. for adjudication 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 the case, and that there is no question of the penalty being barred by time on that ground. Placing such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties informed. The order-sheet clearly requires the ld. DR to file a counter affidavit in the matter as also to produce the inward Tapal register. No counter affidavit or affidavit-in-reply or otherwise rebuttal has, however, been filed by the Revenue. In fairness, however, we must mention that the ld. DR did not before us dispute the filing of the application u/s.273AA by the assessee in time, i.e., on 24.04.2009. Under the circumstances, we consider the assessee to have moved valid application/s u/s.273AA on 24.04.2009 with the competent authority, i.e., the office of the CIT. We consider it as so as the said provision only bars an application after the levy of penalty; the other conditions of the provision, viz. abatement of the proceedings before the Settlement Commission, etc. being apparently and undisputedly satisfied in the present case. We further find that the assessee had duly informed the A.O. of the same in-as-much as he cannot plead prejudice if he had not duly communicated the said fact, i.e., of the application/s u/s.273AA having been moved before the competent authority, to the A.O. 3.2 The next question before us is of any legal infirmity, if any, attendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears 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 question of imposition of the penalty being time barred, i.e., post the said restoration. On the basis of the abundant case law before us, we are in no manner of any doubt that the apprehension raised in this regard by the ld. DR, valid in principle, in view of the legal maxim that no court or tribunal, or even public authority for that matter, can by its action or non-action prejudice the case of any party before it, is misplaced. The penalty order/s that may be passed by the A.O. in the set aside proceedings would not be subject to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
