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TMI Blog2019 (2) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... modification made of the order passed under Section 271 based on the order of the High Court. This would only be detrimental to the assessee since otherwise the assessee would have to pay the penalty as imposed in the impugned orders without the benefit of the modification being made available to the assessee. We do not think that the intention of the legislature was to prohibit the assessee from getting the benefit of an order in appeal before the higher authorities for reason only of the Department having not acted with expediency. We, hence, reject the said contention also and answer the first question against the assessee and in favour of the Revenue, which in fact would enure to the benefit of the assessee by enabling revision of penalty, as per the judgment of the High Court. - ITA 142/2012, ITA. 133/2012, ITA. 141/2012, ITA. 157/2012, ITA. 158/2012, ITA. 159/2012 AND ITA. 160/2012 - - - Dated:- 1-2-2019 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellant : ADVS. SRI. P. GOPINATH (SR. ) SRI. K. JOHN MATHAI SRI. M. GOPIKRISHNAN NAMBIAR SRI. P. BENNY THOMAS AND SMT. PREETHA S. NAIR For The Respondent : SRI P. K. R. MENON SR COUNSEL, GOI TAXES, JOSE JOS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 271(1)(c) which not only speaks of concealment of particulars of income but also furnishing inaccurate particulars of such income. The additions made, to the extent confirmed by this Court, definitely leads to a finding of inaccurate particulars having been furnished which would enable invocation of Section 271(1)(c). We hence answer the said questions of law against the assessee and in favour of the Revenue. 5. On questions Nos. 1 and 4, we have to first address the argument of limitation raised by the learned Counsel for the assessee. The learned Counsel for the assessee would contend that the limitation as provided under Section 275 has worked itself out. The learned Counsel would specifically refer to the proviso introduced under Section 275(1)(a) which applies to the orders of the First Appellate Authority passed after 01.06.2003. The same was brought in by amendment with effect from 01.06.2003 as per Finance Act, 2003. By the said proviso, an order of penalty has to be passed, in cases where there is an appeal filed to the First Appellate Authority within the one year period from the end of the month in which the order of the Commissioner(Appeals) is received by the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l year in which the order of the Commissioner (Appeals) is received by the Chief Commissioner (Appeals) is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, whichever is later 8. The assessment under Section 153A was made on 17.03.2006. A notice under Section 271 was also issued on the very same date. Going by the main provision at sub-clause (a) an order of penalty could be passed before 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 the Appellate Tribunal is received by the Department. Hence, if no appeal were filed by the assessee, the time for passing an order under Section 271 expires on 31.03.2006, the last date of the financial year in which the original proceedings leading to the penalty proceedings was concluded. 9. However, the assessee had filed an appeal in which circumstances, the limitation would stand extended again by virtue of clause (a) to six months from the end of the month in which the First appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. The introduction of the proviso does not render otiose a portion of the main body of the sub-clause. The proviso only intended extending the period of limitation after the first appellate order is received. That too in respect of orders passed after 01.06.2003. The proviso; we reiterate, does not render otiose the period of limitation provided in sub-clause (a), after the receipt of the order of the appellate Tribunal. If that was the intention of the legislature sub-clause(a) itself would have been amended and the limitation for passing a final order confined to that period after receipt of the first appellate order. 11. We have also looked at the Finance Bill, 2003, which indicates the amendment having been proposed in clause (89). We have examined the Notes on Clauses, which does not contain any specific explanation for introduction of the provision. The Notes on Clause only indicate that the proviso as introduced in the Bill, intended to extent the period of limitation for passing the order under Section 271 after the first appellate order was passed. We also examined the Memorandum Explaining the Provisions in the Finance Bill, 2003, which does not have any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal is received. The penalty order having been passed on 31.07.2008, it is within the limitation period, though on the last day of the period as provided in clause (a). In such circumstances, we answer the fourth question raised herein above against the assessee and in favour of the Revenue. 13. The learned Counsel has a further submission insofar as the justification of the Tribunal to direct the Assessing Officer to rework the quantum of penalty in terms of the order of the High Court. The contention is raised on the ground that there is a specific prohibition provided in sub-section(1A) of Section 275. Sub-section (1A) contemplates situations where an order of penalty has been passed, revised or even dropped on the basis of the appellate orders, which however has to be revised or revived by reason of a further appeal to the Tribunal, High Court or the Supreme Court, having resulted in modification of the assessment. It is contended that the order giving effect to such orders of the higher authorities, can only be carried out within six months from the end of the month in which such order of the Commissioner (Appeals), Appellate Tribunal, High Court or Supreme Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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