9911796707
TMI Blog2022 (10) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the learned Assessing Officer informed the learned Addl. CIT about the offence and to show cause the notice under section 274 of the Act. Apparently in this case, the first notice was issued on 15.12.2013 and second notice was issued on 16.01.2014 are identical. Therefore, from the date of notice dated 15.12.2013, the penalty order should have been passed on or before 30th June 2004 but were passed on 30th July 2014. Therefore, both the orders of the penalty are barred by limitation. In this case, ld. Adjudicating authority once again issued the same notice for the same offence being show cause notice for levy of penalty u/s 271D and 271E of the act on 16/1/2014. Claim of revenue is that the last notice [ second notice] issued by the ld. Adjudicating authority should be considered for computing outer time limit for passing penalty orders. If the subsequent notices issued by the ld. Adjudicating authorities on 16/01/2014 are taken for computing time limit, the ld. Adjudicating authority would always be in a positing extend the above time limit for issuing a fresh notice for the same offence and it would not be in consonance of letter and spirit of the law. Therefore, same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 5 of her order is factually incorrect inasmuch as the case was discussed with the authorized representative of the appellants and a letter dated 18thDecember 2017 has been filed on even date which has also been considered by her in the impugned order. 03. Grounds in ITA No.1218/Mum/2021 confirming penalty u/s 271 D of the Act are as under: - 1. The Commissioner of Income-tax (Appeals) - 49, Mumbai (hereinafter referred to as the CIT(A)) erred in framing an ex parte order for non-attendance on 22 November 2017. The appellants contend that on the facts and in the circumstances of the case and in law, the CIT(A) ought not to have framed an ex parte order inasmuch as the authorized representative did attend the office of the CIT(A) on three occasions, and as the CIT(A)held dual charge, she was not in office of the appellants' charge on all the occasions. 2. The CIT(A) erred in confirming the action of the Additional Commissioner of income-tax, Central Range 6, Mumbai in levying penalty of ₹ 12,38,75,000/- under section 271 D of the Act. The appellants contend that on the facts and in the circumstances of the case and in law the impugned penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B Corporation of Rs.12,23,50,000/- the show cause notice under section 271E of the Act were issued on 15/12/2003 as there is a violation under the provisions of Section 269T of the Act was noticed. Later on, similar notice was issued by same adjudicating authority stating same facts on 16/01/2004. After considering the explanation of the assessee, which was similar to the submission against the show cause notice for offence u/s 269 SS of the Act, the Addl. Commissioner of Income-tax, Central Circle, Mumbai levied the penalty under section 271E of the Act of Rs.12,23,75,000/- by passing a separate order on 30th July 2004. 08. Both these orders were challenged before the learned CIT(A) and subsequently before the co-ordinate Benches. The co-ordinate Bench set aside the matter back to the file of the learned CIT(A). The learned CIT(A) passed an order on 18thDecember 2017 confirmed the levy of penalty under section 271E of the Act and further enhanced by the learned CIT(A) of Rs.22,99,17,749/-. Therefore, now, this is the appeal before the co-ordinate bench in the second round of proceedings. 09. Similarly, against the order passed by the learned Addl. Commission of Income Tax un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore ITAT, the above ground cannot be raised. 017. We have carefully considered the rival contentions and find that the ground raised by the assessee is jurisdictional ground which can be raised in time during pendency of appeal. Further, this ground goes to the root of the matter and does not require any further verification of facts. Therefore, we admit the same. 018. The learned Authorized Representative specifically argued that in the present case, assessment passed under section 143(3) of the Act on 5thNovember 2003 and notice under section 271E of the Act was issued on 15thDecember 2003 and penalty is imposed on 30thJuly 2004. He referred to the provisions of section 275(1)(c) of the Act and submitted that imposition of penalty was taken on 5th November 2003 and therefore, the penalty could not have been levied later of 30th June 2004. He submitted that as penalty is levied on 30th July 2004 it is barred by limitation and therefore, it should be quashed. For this proposition, he relied on the decision of Hon'ble Delhi High Court in the case of PCIT vs. Mahesh Wood Products (P.) Ltd. [2017] 394 ITR 312 (Delhi), Pr. Commissioner of Income Tax Vs. JKD capital and Finle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and Commissioner of Income Tax (Appeals). He even otherwise submitted that the assessee has not shown any reasonable cause and therefore penalty under section 271D and 271E of the Act were levied. He further submitted that there is no exemption with respect to the transaction of the group concern. In view of this he submitted that the penalty levied by the Assessing Officer and enhanced by the learned CIT(A) deserves to be confirmed. 023. The learned Departmental Representative with respect to the argument of the learned Authorized Representative that orders passed are not within the time limit, he submitted that orders are passed within six months of the time period allowed under section 275 of the Act. He submitted that notice under section 271D and 271E of the Act read with section 274 of the Act were issued on 16thJanuary 2004 and the respective penalties were levied on or before 30th July 2004 there is no infirmity, and the penalties orders are within time. 024. The learned Authorized Representative submitted that identical issue is decided in case of assessee by co-ordinate Bench for Assessment Year 2000-01, where the penalty levied under section 271E and 271D of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 15.12.2003, the penalty order should have been passed on or before 30th June 2004 but were passed on 30th July 2004. Therefore, both the orders of the penalty are barred by limitation. 026. In this case, ld. Adjudicating authority once again issued the same notice for the same offence being show cause notice for levy of penalty u/s 271D and 271E of the act on 16/1/2004. Claim of revenue is that the last notice [ second notice] issued by the ld. Adjudicating authority should be considered for computing outer time limit for passing penalty orders. If the subsequent notices issued by the ld. Adjudicating authorities on 16/01/2004 are taken for computing time limit, the ld. Adjudicating authority would always be in a positing extend the above time limit for issuing a fresh notice for the same offence and it would not be in consonance of letter and spirit of the law. Therefore, same is rejected. 027. Accordingly, following the decision of the Hon'ble Delhi High Court, in case of JKD Fin lease services limited, we hold that both the penalty orders passed on 30/7/2004 are barred by limitation of time and therefore quashed. 028. Accordingly, both the appeals filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
