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TMI Blog2011 (7) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars of income which is beyond jurisdiction, bad in law and void ab initio. 2. That the CIT(A) erred on facts and in law in upholding the penalty levied by the AO in respect of addition made u/s 41(1) of the Act on account of alleged cessation/remission of statutory liability by a unilateral act of the appellant. 2. The following additional ground has been filed:- That in the circumstances of the case, the order dated 28.07.2009 passed by the Assessing Officer levying penalty under section 271(1)(c) of the Income Tax Act, 1961 is barred by limitation. 3. For the admission of the additional ground, the learned counsel for the assessee has contended that it is being raised at this juncture p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been passed within limitation. 9. At the outset, section 275(1)(a) proviso reads as follows:- 275. Bar of limitation for imposing penalties. (1) No order imposing a penalty under this Chapter shall be passed (a) In a case where the relevant assessment or other order is the subject matter of an appeal to the Commissioner(Appeals)under section 246 or section 246A or an appeal to the Appellate Tribunal under section 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 Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded by the learned counsel for the assessee. Thus, as per the proviso to section 275(1)(a) of the Act, the penalty order ought to have been passed on or before 31.3.2005, i.e., within one year from the end of financial year in which the ld. CIT(A) s order was received back by the Department. The penalty order, however, got to be passed only on 28.7.2009. That being so, the contention of the assessee is correct. The penalty order is clearly barred by limitation provided by the proviso to section 275(1)(a) of the Act. 12. Apropos the Department s contention that the case is covered by the proviso to section 275(1A) rather than the proviso to section 275(1)(a) of the Act, it is seen that this is not correct. Section 275(1A) reads a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f revision is passed. In such a situation, an order imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty may be passed on the basis of assessment as revised by giving effect to the appellate order or the revisional order. 14. However, now the present case, no order either imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty stands passed. That being so, the provisions of section 275(1A) are not applicable. 15. In view of the above, the penalty order is hit by the proviso to section 275(1)(a) of the Act. Going by the para-meters laid down therein in the said section, the penalty order is clearly beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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