9911796707
TMI Blog2016 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : Shri R.Krishnan, CA ORDER Per B. P. Jain, AM This appeal of the Revenue arises from the order of the Ld. CIT(A)-II, Kozhikode dated 21/11/2012 for the block period 1987-88 to 1997-98. The assessee has also raised Cross Objection against the appeal of the Revenue in C.O. No. 02/Coch/2013. 2. The brief facts of the case are that a search u/s. 132 of the Income Tax Act, 1961 was conducted at the premises of the assessee on 21.03.1997 and the assessment was completed u/s. 158BC of the Income Tax Act, 1961 on 05.03.1999 fixing the total undisclosed income at ₹ 80,69,510/- for the block period. Against this order, the assessee preferred an appeal before the Commissioner of Income Tax(Appeals) and on giving effect to the order of the Commissioner of Income Tax(Appeals) dated 27.03.1999, the total income was reduced to ₹ 18,49,640/- . The Department went in appeal before the Income Tax Appellate Tribunal and the Tribunal has retained certain additions made by the Assessing Officer and the total income was fixed at ₹ 42,65,340/-. The assessee moved before the Hon ble High Court of Kerala against the order of the ITAT dated 22.12.2001. During pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner(Appeals) u/s. 246 (or section 246A) or an appeal to the Appellate Tribunal u/s. 253, 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 the order of the Commissioner(Appeals) or, as the case may be, the Appellate Tribunal is received by the Chief Commissioner or the Commissioner, whichever period expires later; (d) in a case where the assessment is the subject-matter of revision u/s. 263, after the expiry of six months from the end of the month in which such order of revision is passed; (e) in any case other than those mentioned in clauses (c) and (d), 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; (f) in respect of search initiated u/s. 132 or books of account, other documents or any assets, requisitioned u/s. 132A after the 30th day of June, 1995 but befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment is the recognized agent of the department and is authorized to receive the certified copy of the judgment from the Hon ble High Court. In view of this, the Standing Counsel has to be treated as the recognized agent of the Commissioner/Department and the date of receipt of the order of the High Court by him has to be treated as the date of receipt of the order by the Commissioner/Department. Thus, the penalty order should have been passed on or before 31-03-2010 or 31-08-2010. In the decision reported in 175 ITR 546 CIT vs. Shiv Das Sire Mal, the Honourable High Court of Rajasthan has held that as per section 275 as amended with effect from 01.04.1971, the bar of limitation for imposing penalty applies not only to initial order but also to an order of penalty imposed as a consequence of appellate order. As the order has been passed on 27.09.2010, I am inclined to quash the penalty order as it has been passed after the limitation period. 6.2 Secondly, as submitted by the counsel in earlier paragraph, the penalty order dated 27.09.2010 acquires the character of a primary order and for all practical purposes this order has to be treated as the initial lawful order. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order gets time barred 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. In the present case, the first part comes to play and the penalty gets time barred on 31/03/2010. Alternatively if the provisions of section 158BFA(3)(c) are to be applied for limitation purposes, the date of receipt of the order by the Commissioner or the Income Tax Department shall be the date of order of Hon ble High Court. In the present case, it is evident from the copy of Hon ble High Court s order obtained by the assessee under RTI which the Standing Counsel has applied on 04/11/2009 and the same was received on 16/02/2010 and accordingly, reckoning of six months time starts from 16/02/2010. 8. It is pertinent to reproduce hereinbelow the decision of the Hon ble Madhya Pradesh High Court in the case of Sultanpur Kshetriya Gramin Bank v. Joint CIT (2011) 336 ITR 156 (M.P.) at page 161:- Under Order 3, rule 3 of the Code of Civil Procedure processes served on a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order by the Commissioner or the Income Tax Department. Accordingly, the penalty order should have been passed on or before 31/03/2010 or 31/08/2010, which in fact had been passed on 27/09/2010 which is beyond the limitation period as prescribed in the Income Tax Act. Therefore, the penalty order passed by the Assessing Officer is barred by limitation and is liable to be quashed. Accordingly, we do not find any infirmity in the order of the Ld. CIT(A) who has rightly quashed the penalty order passed by the Assessing Officer. Thus the grounds of the Revenue on this issue are dismissed. 9. As regards the ground whether permission of the Joint Commissioner is required or not, we do not consider it necessary to adjudicate since the assessee succeeds on the first issue. Accordingly, in the circumstances and facts of the case, the appeal of the Revenue in I.T.A. No. 01/Coch/2013 is dismissed. 10. Now we shall take up the Cross Objection in C.O. No. 02/Coch/2013 where the Ld. Counsel for the assessee had stated that he does not have any ground and the same are supportive in nature and therefore, in the circumstances and facts of the case, we dismiss the said Cross Objection filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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