TMI Blog2012 (9) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... justified, unwarranted and as such deserves to quashed under law in the facts and circumstances of the case because (1). The ld. CIT(A) has failed to appreciate that the impugned order was a nullity on account of its being time barred since passed beyond the time specified in clause (c) of sub-section (3) of section 158BFA in as much as he has been guided by factors not known to law or otherwise irrelevant. (2). In any case and without prejudice, the learned CIT has failed to appreciate that penalty was not leviable even on merits under law in the facts and circumstances of the case. 2. Briefly, the facts of the case are that search and seizure operation was carried out at the residential premises of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed the appeal of the assessee. His findings in para 2.1 of the appellate order are reproduced as under : 2.1. I have gone through the assessment order and submission of the Ld. AR. As regards the plea of the Ld. AR that the penalty order barred by limitation cannot be accepted in view of the fact that on receipt of Hon ble ITAT, Agra order dated 3.11.04 a show cause notice was issued to the assessee as to why penalty u/s. 158BFA(2) should not be imposed and in response to which the assessee had himself requested that penalty proceedings may please be kept in abeyance as he had preferred a misc. application before the Tribunal. The order of the ITAT deciding the miscellaneous application was received by the concerned CIT on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copy of the Tribunal order was posted to the respondent on 18.03.2005 and the same was also sent to the AO by hand. He has, therefore, submitted that the order of the Tribunal must have been delivered to the Revenue department at least by the end of March, 2005. Therefore, penalty order is time barred as per section 158BFA(3)(c) of the Act. He has submitted that the AO initiated penalty on 29.11.2002 and further issued show cause notice on 08.12.2005, but passed the order ultimately on 28.08.2007. Therefore, the penalty order is time barred and the period of limitation cannot be reckoned from the date of passing of the order of the Tribunal in M.A. No. 103/Agra/2005 dated 29.12.2006. On the other hand, the ld. DR relied upon the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of financial year in which the 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 Commissioner (Appeals) or the Appellate Tribunal is received by the CCIT or the CIT, whichever period expires later. In this case, penalty was initiated by the AO initially on 29.11.2002 and thereafter on 08.12.2005 as per the facts mentioned in the penalty order. However, proceedings were kept in abeyance because the assessee filed M.A. u/s. 254(2) of the IT Act before the Tribunal. Therefore, when the penalty proceedings were initiated in November, 2002, penalty should not be imposed after expiry of the financial year, in which action f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was subject matter of appeal was passed on 03.11.2004. There is no reference of section 254(2) of the IT Act in the above provision for extending period of limitation for passing the penalty order. The M.A. filed by the assessee and decided on 29.12.2006 falls in the provisions of section 254(2) of the IT Act and has no concern with the main appeal filed u/s. 253 of the IT Act. Since, there is no reference of any order passed u/s. 254 (2) in the provisions of section 158BFA (3)(c), therefore, the authorities below have wrongly considered the issue for the purpose of calculating the period of limitation. Further, it is noted in the impugned orders that since the assessee requested in response to the show cause notice that penalty pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
