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 →

The Assistant Commissioner of Income-tax, Circle-1, Kannur Versus Shri P.P. Ummerkutty Vice-Versa

2016 (5) TMI 701 - ITAT COCHIN

Penalty u/s. 158BFA(3)(e) - penalty order within the time allowed - Held that:- Standing Counsel has to be treated as the recognized agent of the Commissioner or the Income Tax Department and the date of receipt of the order of the Hon’ble High Court by him has to be treated as the date of receipt of the order by the Commissioner or the Income Tax Department. Accordingly, the penalty order should have been passed on or before 31/03/2010 or 31/08/2010, which in fact had been passed on 27/09/2010 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oner : Shri K.P. Gopakumar, Sr. DR For the Respondent : Shri R.Krishnan, CA ORDER Per B. P. Jain, AM This appeal of the Revenue arises from the order of the Ld. CIT(A)-II, Kozhikode dated 21/11/2012 for the block period 1987-88 to 1997-98. The assessee has also raised Cross Objection against the appeal of the Revenue in C.O. No. 02/Coch/2013. 2. The brief facts of the case are that a search u/s. 132 of the Income Tax Act, 1961 was conducted at the premises of the assessee on 21.03.1997 and the a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

etained certain additions made by the Assessing Officer and the total income was fixed at ₹ 42,65,340/-. The assessee moved before the Hon ble High Court of Kerala against the order of the ITAT dated 22.12.2001. During pendency of appeal before the Hon ble High Court, the Assessing Officer passed the order dated 08.07.2002, imposing a penalty of ₹ 25,00,000/- u/s. 158BFA(2). The assessee preferred appeal against the penalty order before the CIT(A) and on giving effect to the order 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

t ₹ 42,65,340/-. The Assessing Officer after receipt of the order of the High Court of Kerala considered the issue of penalty afresh after giving reasonable opportunity to the assessee and imposed penalty of ₹ 24,18,452/-, vide order dated 27.09.2010. 3. The Ld. CIT(A) quashed the penalty order passed by the Assessing Officer and his findings are very relevant which are reproduced hereinbelow:- 6. I have considered all the facts and materials placed on record. The argument of the cou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

interest and penalty in certain cases. 158BFA. ………… (3) No order imposing a penalty under sub-section (2) shall be made,- (a) unless an assessee has been given a reasonable opportunity of being heard; (b) by the Assistant Commissioner (or Deputy Commissioner) or the Assistant Director (or Deputy Director), as the case may be, where the amount of penalty exceeds twenty thousand rupees except with the previous approval of the (Joint) Commissioner or the (Joint) Director .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ved by the Chief Commissioner or the Commissioner, whichever period expires later; (d) in a case where the assessment is the subject-matter of revision u/s. 263, after the expiry of six months from the end of the month in which such order of revision is passed; (e) in any case other than those mentioned in clauses (c) and (d), 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 mont .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ala u/s. 260A, his case falls u/s. 158BFA(3)(e). The proceedings in the course of which action for imposition of penalty was initiated became complete only with the pronouncement of the order of the High Court of Kerala on 03.11.2009 or on 24.02.2010 when the standing counsel of the Department received the certified copy of the order. Further, in the case of orders u/s. 260A, order-III, rule-3 of the Code of Civil Procedure applies and not the rule No.35 of the Appellate Tribunal Rules which req .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cond part of section 158BFA(3)(e) is not applicable, the first part comes to play and the penalty gets time barred on 31.03.2010. Alternatively if section 158BFA(3)(c) is to be applied for limitation purposes, the date of receipt of the order by the Commissioner or the Department shall be the date of order of High Court, or an 24.02.2010. It is evident from the copy of High Court s order obtained by the assessee under RTI from the Office of the CIT that the Standing Counsel has applied for the c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

owered to accept the copy of the order of the Tribunal and therefore, the service on him is valid service for the purposes of calculation of limitation. The senior counsel of the department is the recognized agent of the department and is authorized to receive the certified copy of the judgment from the Hon ble High Court. In view of this, the Standing Counsel has to be treated as the recognized agent of the Commissioner/Department and the date of receipt of the order of the High Court by him ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er. As the order has been passed on 27.09.2010, I am inclined to quash the penalty order as it has been passed after the limitation period. 6.2 Secondly, as submitted by the counsel in earlier paragraph, the penalty order dated 27.09.2010 acquires the character of a primary order and for all practical purposes this order has to be treated as the initial lawful order. In view of this, the Assessing Officer should have obtained the prior approval of the Joint Commissioner as per provisions of 158B .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

missioner, the order has to be treated as null and void. In view of this, penalty is not sustainable on this count also. 4. The Ld. DR relied upon the order of the Assessing Officer and also the decision of the Hon ble Madhya Pradesh High Court in the case of CIT vs. Vijay Dal Mills, 230 ITR 301. 5. The Ld. AR relied upon the order of the Ld. CIT(A). 6. In the grounds of appeal, there are mainly two issues. Firstly, whether the assessee s case falls u/s. 158BFA(3)(e) and if so, the Assessing Off .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is no dispute to the fact in the present case that the quantum assessment of the assessee was the subject matter of appeal before the Hon ble High Court of Kerala u/s. 260A and therefore, the present case falls u/s. 158BFA(3)(e) of the Act. Accordingly, the proceedings in the course of which action for imposition of penalty was initiated are completed with the pronouncement of the order of the Hon ble High Court of Kerala on 03/11/2009 or on 24/02/2010 when the Standing Counsel of the Departmen .....

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 for imposition of penalty is initiated, whichever period expires later. In the present case, the first part comes to play and the penalty gets time barred on 31/03/2010. Alternatively if the provisions of section 158BFA(3)(c) are to be applied for limitation purposes, the date of receipt of the order by the Commissioner or the Income Tax Department shall be the date of order of Hon ble High Court. In the present case, it is evident from the copy of Hon ble High Court s order obtained by the as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the party shall be effectual as if the same had been served on the party himself as held in Jangi Bhagat Ramawtar vs. CIT, AIR 1930 Patna 127. The Allahabad High Court in Mithoo Lal Tek Chand v. CIT (1967) 64 ITR 377 (All) has held that a munim is an authorized agent to receive notices on behalf of the firm of his employers. Service on the secretary of the managing director of a notice addressed to the company was held to be valid service in General Commercial Corporation Ltd. v. CIT (1966) 6 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

T vs. Mohd. Farooq (2009) 317 ITR 305 (All); (2009) UPTC 1162 (FB) an application u/s. 5 of the Limitation Act for condonation of delay in filing the appeal is not maintainable. Besides above, the period of limitation for the purposes of filing of an appeal starts running from the date of receipt of the copy of the order of the Tribunal, which cannot be an uncertain or disputed date. For the purposes of calculation of the period of limitation, its starting point must be a definite point and it c .....

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