9911796707
TMI Blog2016 (7) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... O u/s 158BFA(2) of the Income Tax Act, 1961 in respect of the addition confirmed by the Hon'ble Delhi High Court vide order dated 29.11.2010. 2. The order of the CIT (A) is erroneous and is not tenable on facts in law." 3. Brief facts of the case are that search u/s 132 of the Act was carried out in Shyam Telecom Group Cases on 13.01.2000. As in the case of the assessee there was no search warrant, notice u/s 158BC was issued on 06.03.2002 in response to that company filed Nil return on 26.03.2002. During the course of search it was found that assessee has earned certain long term capital gain of Rs. 1990704/- which was not shown in the return of income. This was added to the total income of the assessee as undisclosed income in block a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of share which came to the notice of the revenue only because of search. In view of this he vehemently supported the penalty order of the ld Assessing Officer. 5. Against this ld AR invoking the provision of Rule 27 submitted that the date of the order of the Tribunal is 12.10.2006 and the date of the High Court order is 29.11.2010 and penalty order is passed on 19.05.2011 therefore provisions of section 158BFA(3)(c) extends the period of limitation in the matter of appeal before the Tribunal only and not on appeal before the Hon'ble High Court. Therefore he supported that the penalty order is passed beyond the period of limitation as provided u/s 158BFA(3)(c) of the Income Tax Act. He stated that as the date of the Tribunal order is 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n , as under:- "4. We have considered the rival submissions and the material on record. It is not in dispute that the Tribunal disposed of the appeal of the assessee and the department vide order dated 03.11.2004.As per information received from the office of the Tribunal, the order was posted to the respondent on 18.03.2005 and copy of order was sent to the AO by hand. Thus, the ld. counsel for the assessee rightly contended that the impugned order must have been received in the office of the Commissioner at least by March, 2005. Section 158BFA(3)(c) provides as under : "158BFA (3). No order imposing a penalty under sub-section (2) shall be made,- (a) to (b)** ** ** (c) in a case where the assessment is the subject-matter of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y March, 2003 and the second proviso further provides or six months from the end of the month in which the order of the Tribunal is received by CCIT or the CIT whichever is later. The order of the Tribunal is received by the Commissioner by March, 2005, therefore, penalty could have been levied within further six months, i.e., upto the month of September, 2005. However, the penalty order is passed on 28.08.2007 and as such, it was passed beyond the period of limitation as provided u/s. 158BFA(3)(c) of the IT Act. The AO and the ld. CIT(A) have, however, noted in the impugned orders that when penalty proceedings were initiated, the assessee himself requested in response to the show cause notice to keep the penalty proceedings in abeyance bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 254(2) of the IT Act, therefore, the limitation period would be extended. The explanation to section 158BFA(3) is inserted, which provides that in computing the period of limitation for the purpose of this section, (i) the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129, (ii) the period during which the immunity granted under section 245H remained in force and (iii) the period during which the proceedings under sub-section (2) are stayed by an order or injunction of any court, shall be excluded. None of the above clauses are applicable to the facts of the case of the assessee. Merely because the assessee himself stated that proceedings may be kept in abeyance on filing the M.A., the AO s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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