TMI Blog1993 (4) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... order appealed against or one certified copy along with a photostat copy, and in the present case, the Income-tax Officer had chosen to file a certified copy of the order of the CIT(A) for which he had also made an application to the CIT(A) well in time. Since the certified copy was getting delayed the Income-tax Officer saw no point in waiting further and therefore he had filed the appeals by enclosing photostat copies of the orders of the CIT(A) duly authenticated. Under the circumstances, it was pointed out that there was no delay which required to be condoned. On the other hand, the Ld. Representative for the assessee vehemently objected to the delay being condoned. Relying on the decision of the Madras High Court in K. Muthusamy Pillai v. ITAT [1988] 174 ITR 636, he pointed out that the Department was not vigilant and was guilty of laches, and, therefore the delay should not be condoned. In this connection, he pointed out that the Department could have very well filed the appeals enclosing photostat copies of the impugned orders, as was done by it ultimately, instead of waiting for the certified copy from the office of the CIT(A) and thereby allowing the time limit to get bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elled by the CIT(A) against which the Department is in appeal. While cancelling the penalties, the CIT(A) held against the assessee in respect of two points. The first is the point of limitation. The question arises under these facts. The following chart sets out the relevant dates : Particulars/Assessment year 1981-82 1982-83 Assessment Order Passed 22-9-1984 23-3-1985 Penalty Proceedings initiated 22-9-1984 23-3-1985 Appellate Order of CIT(A) passed 7-8-1986 7-8-1986 Appellate Order Received by Department 15-9-1986 15-9-1986 Penalty limitation under section 275 31-3-1987 31-3-1987 Appeal under section 253(3) filed by Department 3-7-1987 3-7-1987 Tribunal Order passed 13-9-1989 13-9-1989 Penalty Order passed 29-3-1990 29-3-1990 The contention of the assessee before us is that under section 275(a)(ii) of the Act, the period of six months from the end of the month in which the order of the CIT(A) (in the quantum appeals) was received by the CIT expired on 31-3-1987 and the Department not having preferred any appeal before the date to the Tribunal against the orders of the CIT(A), the last date for passing the penalty order expired on 31-3-1987 and the penalty orders having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the assessee to be re-heard under the proviso to section 129 ; (ii) any period during which the immunity granted under section 245 remained in force ; and (iii) any period during which a proceeding under this Chapter for the levy of penalty is stayed by an order or injunction of any court, shall be excluded. " The penalty order has to be passed within two years from the end of the financial year in which proceedings, in the course of which action for imposition of penalty has been initiated are completed, or six months from the end of the month in which the order of the CIT(A) or the Tribunal is received by the CIT, whichever period expires later. It is common ground that the time limit of two years prescribed by sub-clause (i) has expired. The only question is, whether the order of the CIT(A) in the quantum appeals were the subject matter of appeal to the Tribunal. The order of the CIT(A) in the quantum appeals were received by the CIT on 15-9-1986. Thereafter, the Income-tax Officer had a period of six months from the end of that month to pass the penalty orders. However, if he had filed appeals to the Tribunal before 31-3-1987, the period of six months would be reckon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Income-tax Officer to commence an assessment or reassessment does not impair the rights already acquired by the assessee by the bar of limitation and does not revive the power of the Income-tax Officer which has already become incapable of being exercised by lapse of time. In the case of J.P. Jani, ITO v. Induprasad Devshanker Bhatt [1969] 72 ITR 595, it was again held by the Hon'ble Supreme Court, that unless the terms of statute expressly so provide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any vested right acquired or to revive any remedy already lost by efflux of time. In the case of S. S. Gadgil v. Lal Co. [1964] 53 ITR 231, the Hon'ble Supreme Court, speaking through His Lordship Justice Shah, held that the time limit within which a particular Act may be done under the I.T. Act is not a mere period of limitation, but it is in fact a fetter on the power of the Income-tax Officer. In the present case, the Income-tax Officer lost the power to impose penalty by not preferring appeals to the Tribunal before 31-3-1987. After that date, the assessee acquired a right of not being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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