9911796707
TMI Blog2022 (11) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the case?" 2. The learned senior standing counsel for the Revenue has made the following submissions: - 2.1. He states that in the present appeals, the Assessing Officer ('AO') passed the assessment order(s) on 17th December, 2008 and 18th December, 2008 and recorded that the penalty proceedings be initiated; and a reference was made by the AO to the prescribed authority on 18th March, 2009. The prescribed authority had, thereafter, issued separate Show Cause Notice ('SCN') to the Respondent(s), Assessee(s), on 24th March, 2009, and consequently, the penalty order(s) were passed on 29th September, 2009. 2.2. He states that the aforesaid facts evidence that the penalty order(s) were passed within six months from the end of the month in which the reference was made by the AO to the prescribed authority i.e., 18thMarch, 2009. 2.3. He states that in the facts of the present appeals, the penalty order(s) were passed within six months from the end of the month in which the penalty proceedings were initiated by the prescribed authority by issuance of SCNs dated 24th March, 2009. 2.4. He states that the ITAT erred in holding that the limitation under Section 275(1)(c) of the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction by taking cognizance of the reference made to it by the AO. He, thus, contends that the date of reckoning limitation would be the date of issuance of the show cause notice i.e., 24th March, 2009. He states that the provision of Section 271D of the Act does not have any nexus with the assessment proceedings. 3. In reply, the learned counsel for the Respondent(s), Assessee(s), states that the facts arising for consideration in the present appeals are undisputed to the extent that the penalty proceedings were initiated by the AO in his assessment order(s) passed in December, 2008. Thus, the penalty order(s) passed on 29th September, 2009, were barred by limitation. 3.1. He states that the ITAT followed the judgment of this Court in the case of Principal Commissioner of Income-Tax v. JKD Capital and Finlease Ltd., 2015 SCC OnLine Del 14476 to conclude that the penalty proceedings were initiated in the assessment order(s) itself and therefore, taking the same to be the relevant date of initiation, the limitation period was to be calculated from the end of the month of December, 2008, itself and not from the date on which the SCNs were issued i.e., 24thMarch, 2009. 3.2. He sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate penalty proceedings, inter alia, under Section 271D of the Act. 4.2. ITA 580/2018 -The said Respondent, Assessee herein is also engaged in the business of carrying out land development work and had filed its ROI on 31st March, 2007, declaring a loss of Rs. 58,957/-. The Assessee's case was selected for scrutiny through CASS and Notice was issued under Section 143(2) of the Act, on 20th February, 2008. During the Assessment proceedings, the AO observed that the Assessee had received cash aggregating to Rs. 6,35,15,000/- from three companies. The AO in light of the aforesaid facts, passed the assessment order dated 18th December, 2008, holding that the Assessee has violated the provisions of Section 269SS of the Act, as it had received cash in excess of Rs. 20,000/- and consequently, proceeded to initiate penalty proceedings, inter alia, under Section 271D of the Act. 4.3. ITA 583/2018 -The said Respondent, Assessee, herein is also engaged in the business of carrying out land development work and had filed its ROI on 31st March, 2007, declaring a loss of Rs. 66,279/-. The Assessee's case was selected for scrutiny through CASS and Notice was issued under Section 143(2) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Revenue that the date of the issuance of the SCNs would be the relevant starting point i.e., 24th March, 2009, was specifically noted and rejected by this Court in the Mahesh Wood Products Pvt. Ltd. (supra). The relevant portion of the said judgment reads as follows:- "7. Mr. Sanjay Kumar, learned counsel for the Revenue has sought to place reliance on the decision of this Court in Commissioner of Income Tax (TDS) v. IKEA Trading Hong Kong Ltd., [2011] 333 ITR 565 (Del) to urge that it is the date of issuance of the Show Cause Notice ('SCN') that would be the relevant starting point. Accordingly he submits that the date of issuance of the SCN by the ACIT being 28 August, 2012, limitation would expire on 28 February, 2013. Therefore, the penalty orders having been passed on 26 February, 2013 would not barred by limitation. He also sought to distinguish the decision of this Court in PCIT-5 v. JKD Capital & Finlease Ltd. (supra) by stating that in the said case, the gap between the intimation send by the AO recommending initiation of penalty proceedings and the action taken by the ACIT was nearly five years, whereas in the present case, it was slightly over one month. xxx xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o could have done so. Therefore, for the purpose of limitation under section 275(1) (c), the relevant date should be the date on which notice in relation to the penalty proceedings were issued. In the present case, as the Additional Commissioner of Income-tax issued notice to the assessee on March 12, 2012, the order of the Additional Commissioner of Income-tax passed on March 20, 2012, was within limitation. 7. We are unable to agree with the above submission of learned standing counsel for the Revenue. Section 275(1)(c) reads as under: "275. (1) No order imposing a penalty under this Chapter shall be passed... (c) in any other case, 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." 8. In terms of the above provision, there are two distinct periods of limitation for passing a penalty order, and one that expires later will apply. One is the end of the financial year in which the quantum proceedings are completed in the first instance. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
