Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s Modipon Limited Versus Additional Commissioner of Income Tax (TDS) , Ghaziabad

2016 (5) TMI 22 - ITAT DELHI

Rectification of mistake - rectification of the order passed u/s 201(1) and 201(1A) seeked - Held that:- what is required for adjudication is only the subsequent appeal of the assessee which is filed by him against the order u/s 154 dated 30th April, 2015. The order u/s 154 dated 30th March, 2013 stood modified by the subsequent order passed u/s 154 dated 30th April, 2015. Therefore, in our opinion, no separate adjudication is required with reference to the order u/s 154 dated 30th March, 2013. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d that learned CIT(A) while deciding the appeal against the order u/s 154 dated 30th April, 2015 would not be influenced by any observation or finding given in his order dated 8th December, 2014 but he will decide the appeal afresh uninfluenced by any observation/finding in his order dated 8th December, 2014

Levy of penalty imposed u/s 271C - period of limitation - Held that:- As per clause (c) of Section 275(1), the penalty proceedings were initiated in the course of order u/s 201(1) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l High Court in the case of JKD Capital & Finlease Ltd. (2015 (10) TMI 1281 - DELHI HIGH COURT ) hold that the penalty order passed u/s 271C was barred by limitation - ITA Nos. 1897/Del/2012, 1978/Del/2012 & 1979/Del/2012, ITA Nos.827/Del/2015, 828/Del/2015 & 829/Del/2015 - Dated:- 26-4-2016 - Shri G. D. Agrawal, Vice President And Ms. Suchitra Kamble, Judicial Member For the Appellant : Shri Santosh Kumar Aggarwal, Advocate For the Respondent : Shri P. Dam Kanunjna, Senior DR ORDER Per Bench IT .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s pointed out by the learned counsel for the assessee that subsequently, the Assessing Officer has rectified the order passed u/s 201(1)/201(1A) vide his order dated 30th April, 2015 passed u/s 154 of the IT Act. In the said order, the Assessing Officer has partially accepted the assessee s contention but still rejected some of the assessee s contentions. He pointed out that the assessee is in appeal against the order u/s 154 dated 30th April, 2015. In view of the above, it is suggested by the l .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ause once the order u/s 154 has been passed partially accepting the assessee s contention and the assessee has already filed the appeal against the said order u/s 154, therefore, the only adjudication required by the learned CIT(A) is in the appeal of the assessee filed against the order u/s 154 dated 30th April, 2015. The earlier appeal does not survive for adjudication. 5. In the rejoinder, it is stated by the learned counsel that in the impugned order, learned CIT(A) has made certain observat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

5-06, 2006-07 and 2007-08 i.e., relevant to assessment years 2006-07, 2007-08 and 2008-09. The assessee filed the application u/s 154 for all the three years which was rejected by the Assessing Officer vide order dated 30th March, 2013. The assessee has filed the appeals before learned CIT(A) in all these three years and the same were dismissed by him vide order dated 8th December, 2014. The assessee has filed appeals before the ITAT which are listed above for disposal vide ITA Nos.827/Del/2015, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e assessee has filed appeal before the learned CIT(A) against the order u/s 154 dated 30th April, 2015. In the above circumstances, in our opinion, what is required for adjudication is only the subsequent appeal of the assessee which is filed by him against the order u/s 154 dated 30th April, 2015. The order u/s 154 dated 30th March, 2013 stood modified by the subsequent order passed u/s 154 dated 30th April, 2015. Therefore, in our opinion, no separate adjudication is required with reference to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

4 dated 30th April, 2015. Therefore, we hold that learned CIT(A) while deciding the appeal against the order u/s 154 dated 30th April, 2015 would not be influenced by any observation or finding given in his order dated 8th December, 2014 but he will decide the appeal afresh uninfluenced by any observation/finding in his order dated 8th December, 2014. With this remark, we dismiss the appeals filed by the assessee vide ITA Nos. 827/Del/2015, 828/Del/2015 & 829/Del/2015. ITA Nos.1897/Del/2012, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

#8377; 2,99,016/- 2007-08 ₹ 94,49,969/- 2008-09 ₹ 35,172/- 9. At the time of hearing before us, it is contended by the learned counsel that the penalty order passed by the Assessing Officer is barred by limitation. Since the facts and the date of order for all the three years are common, we shall consider the order for assessment year 2006-07 which would be applicable to all the three years. He pointed out that the Assessing Officer passed the order u/s 201(1A) on 20th June, 2008 dur .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

October, 2015 (Delhi High Court). 10. Learned DR, on the other hand, stated that the relevant date for initiation of penalty proceedings should be the date on which the matter is referred to the competent authority by the Assessing Officer. He stated that the Assessing Officer does not have the jurisdiction to impose the penalty u/s 271C and, therefore, the period of limitation has to be considered only when the competent authority issued show cause notice to the assessee. He stated that the pen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt 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 Appellate Tribunal is received by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n which the proceedings, in the course of which action for imposition of penalty has been initiated, are completed, or within one year from the end of the financial year in which the order of the Commissioner (Appeals) is received by the [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner, whichever is later;] (b) in a case where the relevant assessment or other order is the subject-matter of revision under section 263 [or section 264], after the expi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e the relevant order u/s 201(1)/201(1A) was not the subject matter of appeal to the CIT(A) and similarly, the same was not the subject matter of revision u/s 263. As per clause (c) of sub-section (1), the penalty order cannot be passed after the (i) expiry of the financial year in which the proceedings, in the course of which action for imposition of penalty has been initiated, are completed and (ii) six months from the end of the month in which action for imposition of penalty is initiated whic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for issue of penalty notice u/s 271C. Thus, the penalty proceedings were initiated by the direction of the Assessing Officer for issue of penalty notice u/s 271C. It is contended by the learned DR that as per Section 271C sub-section (2), only the Joint Commissioner of Income-tax is authorized to impose the penalty u/s 271C. Order u/s 201(1) & 201(1A) was passed by the ITO who is not authorized to levy the penalty u/s 271C and, therefore, the period of limitation for the purpose of levy of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gs under section 271E because when there is any acceptance or repayment of loan in violation of section 269SS or 269T, it is the Assessing Officer who has to prima facie satisfy himself whether there is a violation of section 269SS or 269T and if so, initiate penalty proceedings under section 271D or 271E and thereafter refer the matter to the Joint Commissioner who would finally decide and if satisfied, levy the penalty under section 271D or 271E. Hence the period of limitation was to be counte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ase of JKD Capital & Finlease Ltd. (supra), Hon'ble Jurisdictional High Court held as under:- 11. In fact, when the AO recommended the initiation of penalty proceedings the AO appeared to be conscious of the fact that he did not have the power to issue notice as far as the penalty proceedings under section 271-E was concerned. He, therefore, referred the matter concerning penalty proceedings under Section 271-E to the Additional CIT. For some reason, the Additional CIT did not issue a sh .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

yond six months after the month in which they were initiated, whichever was later. In a case where the proceedings stood initiated with the order passed by the AO, by delaying the issuance of the notice under Section 271-E beyond 30th June 2008, the Additional CIT defeated the very object of Section 275(1)(c). 12. In that view of the matter, the order of the CIT(A) which has been affirmed by the impugned order of the ITAT does not suffer from any legal infirmity. 13. No substantial question of l .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version