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TMI Blog2024 (2) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... h Section 153(2A). Full Bench proceeded to reject the contention of the Department that the receipt of the order of the ITAT must be considered as being service upon the jurisdictional Commissioner holding that the acceptance of such a view would amount to rewriting 153(2A) and construing that provision contemplating receipt of the order by the concerned Commissioner or Principal Commissioner of Income Tax. Full Bench had unequivocally found that while examining the issue of limitation, one would have to pose the question of when the Department became aware of the order and not when the concerned Commissioner or Principal Commissioner may have been served or had derived knowledge. It proceeded further to observe that once a responsible officer of the Department becomes aware of the order, the period of limitation would commence form that point in time. In GE Energy Parts [ 2019 (8) TMI 1068 - DELHI HIGH COURT] what is relevant is when the Commissioner of Income-tax (Judicial) representing the Department before the Income-tax Appellate Tribunal received the order, which in any event is generally made available in the public domain soon after the order is pronounced. This is the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner or Chief Commissioner or Principal Commissioner or Commissioner, on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such an order of fresh assessment may be made at any time to the 31st day up to of March, 2002: Provided further that where the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Commissioner or Commissioner on or after the 1st day of April, 2005 but before the 1st day of April, 2011, the provisions of this sub-section shall have effect as if for the words one year , the words nine months had been substituted: Provided also that where the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or as the case may be, the order under section 263 or section 264 is passed by the Principal Commissioner or Commissioner on or after the 1st day of April, 2006 but before the 1st day of April, 2010, and during the course of the proceedings for the fresh assessment of total income, a ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they appear in ITA 64/2024. On 03 April 2007, the assessee filed its Return of Income which thereafter appears to have been selected for scrutiny assessment and a notice under Section 143(2) of the Income Tax Act, 1961 Act being issued. On 31 December 2007, the AO passed an assessment order referable to Section 143(3) determining the total taxable income of the respondent at INR 138,83,40,893/-. It also taxed the revenue of the assessee generated through BREW operator agreements as well as royalty on the sale of CDMA handsets. 4. Aggrieved by the aforesaid, the respondent preferred an appeal before the Commissioner of Income Tax (Appeals) CIT(A) which confirmed the view taken by the AO in terms of its order dated 26 September 2009. The CIT(A), however, accorded partial relief to the respondent by permitting recomputation of the income of the assessee for AY 2005-06 in relation to the number of CDMA handsets. The assessee took the aforesaid order before the ITAT and which by its judgment of 20 February 2015 deleted the additions with respect to revenue earned through BREW operator agreement and partially remanded the matter to the file of the AO to consider related issues afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. According to learned counsel, the word received cannot possibly be construed as intending limitation to be computed from the date when the Commissioner may have derived knowledge of the order passed by the ITAT. According to learned counsel, acceptance of such a view would clearly amount to reconstructing Section 153(2A) and substituting the word received with aspects of knowledge derived. 8. Appearing for the assessee, Mr. Pardiwalla, learned senior counsel, contended that the issue stands conclusively settled by the judgment of the Full Bench in Odeon Builders and consequently there exists no justification for the Court to either admit or entertain these appeals. It was the submission of Mr. Pardiwalla that quite apart from the principles which the Full Bench enunciated, GE Energy Parts was a decision more apt having been rendered on facts identical to those which obtain in the present case. 9. It was submitted that a plain reading of the order dated 12 March 2015 would establish that the AO had full knowledge of the order dated 20 February 2015 passed by the ITAT and consequently the period of limitation as prescribed in Section 153(2A) would have to be computed accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the order of hon'ble ITAT. Net Taxable Income Rs. 5,32,88,790/- Appeal effect given as above for statistical purpose. Allow credit for taxes paid and calculate interest as per law. Issue necessary forms. (Sanjoy Paul) Deputy Commissioner of Income Tax Cir-3(1)(1), Int I Taxation, New Delhi Copy to the assessee Deputy Commissioner of Income Tax Cir-3(1)(1), Int I Taxation, New Delhi 11. Mr. Pardiwalla laid stress on the aforesaid order acknowledging the judgment rendered by the ITAT on 20 February 2015 and the same embodying the intent of the AO to give effect to the same. In view of the above, he submitted the view as taken by the ITAT merits no interference. 12. We note that although the Full Bench of the Court in Odeon Builders was concerned with Section 260A of the Act, there are certain significant observations appearing in that decision of the Court which would have a material bearing on the question which is proposed for our consideration. It becomes pertinent to note that while the principal question which was raised before the Full Bench was whether the words Principal Chief Commissioner or Chief Commissioner as appearing in Section 260A(2)(a) were liable to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular Commissioner of Income-tax or the concerned Commissioner of Income-tax . 39. The interpretation of the prefix the has to be both purposive and contextual. The object of the provision is to enable the filing of appeals within a period of limitation. As it is, the period of limitation (120 days) is considerably longer than in routine cases (30, 60 or a maximum of 90 days). The interpretation has to serve the purpose of not lengthening the period of limitation further, but to ensure that the time limit is strictly adhered to. Relaxation of the period of limitation in such cases has to be an exception and not the rule. The decisions in Consolidated Coffee v. Coffee Board (supra) and Shree Ishar Alloys Steels Ltd. v. JayaswalNeco (supra) were rendered in the context of different statutes where the wording of the provisions in question dictated the result of the interpretative exercise. They are not useful in the interpretation of the word the which precedes the words Commissioner of Income-tax or Principal Commissioner of Income- tax in section 260A(2)(a) of the Act. 40. The context in which the interpretative exercise is to be undertaken is that of the statute of limitation. Usual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being liable to be accepted as constituting the starting point from when the respondents would be deemed to have knowledge of the order passed by the ITAT. 17. It was in the aforesaid backdrop that the Division Bench proceeded to observe as follows: - 30. It is seen in the present case that an show-cause notice was issued to the assessee on February 16, 2017 itself by the Assessing Officer under section 271(1)(c) of the Act and this could not have happened if the Assessing Officer was not already aware of the order of the Income-tax Appellate Tribunal. The appeal effect order passed on May 22, 2017 could not have been issued without a copy of the order of the Income-tax Appellate Tribunal. Therefore, in any event, the six-month period of limitation in terms of section 275(1)(a) of the Act would begin to run from May 22, 2017. 31. On the other hand, it is sought to be contended by the Revenue that the jurisdictional Commissioner of Income-tax, i. e., the Commissioner of Income-tax (International Taxation) received the copy of the order only on November 1, 2017 and therefore, the period of limitation for the purposes of section 275(1)(a) of the Act did not begin till then. In suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to the concerned jurisdictional Commissioner of Income-tax. What is relevant is when the Commissioner of Income-tax (Judicial) representing the Department before the Income-tax Appellate Tribunal received the order, which in any event is generally made available in the public domain soon after the order is pronounced. This is the purport of the decision of the Full Bench of this court in CIT v. Odeon Builders P. Ltd. (supra), the ratio decidendi of which will apply to the case on hand as well since the language of section 260A(1) and section 275(1)(a) of the Act is identical. 34. The result of the above discussion is that the impugned orders of penalty dated April 26, 2018 were issued far beyond the six-month period of limitation in terms of section 275(1)(a) of the Act and were, therefore, invalid. On the date that the said orders were issued, i.e., April 26, 2018 they were without jurisdiction. 18. The ITAT has while passing the orders impugned before us proceeded on the basis of the principles enunciated in the aforenoted two decisions. We thus find no justification to interfere with the view as expressed. The appeal raises no substantial question of law. 19. Consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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