TMI Blog2016 (10) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the assessee - D. B. Income Tax Appeal No. 166-167 /2015 - - - Dated:- 19-10-2016 - K. S. Jhaveri And Mahendra Maheshwari, JJ. Mr. Archana for Mr. Anil Mehta for the appellant Mr. Mahendra Gargieya for the respondent ORDER 1. By way of the appeals, the department has assailed the judgment order of the Tribunal whereby the Tribunal has partly allowed the appeal preferred by the assessee and dismissed the appeal of department where CIT(A) has partly allowed the appeal of the assessee. 2. This Court while admitting the appeal framed following substantial questions of law:- (i) Whether the ITAT has erred in law and on face by holding that the time limit prescribed for completion of penalty proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016, therefore, the matter has been taken up today. 5. Counsel for the appellant contended that the Tribunal has seriously committed an error in levying the penalty on 30/3/2011. In fact, the competent authority-Commissioner issued notice within the limitation and therefore, question is not required to be answered whether 275(1)(a) who is the competent authority under the Act. 6. Counsel for the respondent contended that the second issue has come to be decided by the decision of this Court in CIT Vs. Hissaria Bros. reported in (2007) 211 CTR 156 (Raj.) and CIT Vs. Jitendra Singh Rathore reported in (2013) 83 DTR 0227 (Raj.) as well as Bombay Tribunal in Lodha Builders (P) Ltd. vs. Assistant Commissioner of Income Tax reported in (201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, observed that, Question to be considered is whether procedings for levy of penalty, are initiated with the passing of the order of assessment by the Assessing Officer or whether such proceedings have commenced with the issuance of the notice issued by the Joint Commissioner. From statutory provision, it is clear that the competent authority to levy penalty being the Joint Commissioner. Therefore, only the Joint Commissioner can initiate proceedings for levy of penalty. Such initiation of proceedings could not have been done by the Assessing Officer. The statement in the assessment order that the proceedings under Section 271D and E are initiated is inconsequential. On the other hand, if the assessment order is taken as the initiati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment is called for. 6. The above clarification may be brought to the notice of all officers. 7. We have heard counsel for the appellant and counsel for the respondent. 8. Taking into consideration that under Section 275(1)(c) of the Act, it is no doubt that Commissioner is the competent authority and other contention that the notice was within limitation, in our view is misconceived inasmuch as AO on 30/12/2009 issued notice to the assessee and he was clear that no penalty proceedings required to be initiated. We ought to have held that the Department has taken advantage of any wrong. 9. We are of the opinion that the issues are squarely covered therefore, in both the appeals we answer the question raised in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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