TMI Blog2016 (7) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... th in which the order of the Tribunal is received which in any case is violated as the penalty order is passed on 19.05.2011. As the date of the Tribunal order is 12.10.2006, the penalty should have been levied within 6 months from the end of the month in which the order of the Tribunal is received which in any case is violated as the penalty order is passed on 19.05.2011. In this case the order of the tribunal is dated 12.10.2006 and penalty order is passed on 19.05.2011, therefore, apparently the order is barred by limitation. The decision relied upon by the ld AR of coordinate bench of Arvind Kr. Jain Vs. ACIT [ 2012 (9) TMI 1159 - ITAT AGRA] has decided the issue on identical facts and circumstances, wherein such order of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. As the income was not disclosed in the regular income tax return, show cause notice was issued for penalty on the basis of assessment completed on 10.06.2002 u/s 158BD. Penalty proceedings u/s 158BFA(2) was initiated. On quantum ld CIT (A) confirmed the addition made by the Assessing Officer. On Second appeal preferred before the ITAT in ITA No. 17/Del/2003 wherein vide order dated 24.10.2006 appeal of the assessee was allowed. Subsequently, revenue approached Hon ble High Court and Hon ble High Court vide order dated 29.11.2010 set aside the order of the Tribunal by deciding the issue in favour of the revenue. Subsequently, show cause notice dated 04.04.2011 was issued to assessee for levy of penalty against which the assessee submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order is 12.10.2006, the penalty should have been levied within 6 months from the end of the month in which the order of the Tribunal is received which in any case is violated as the penalty order is passed on 19.05.2011. He relied on the decision of Agra Bench in case of Arvind Kumar Jain Vs. ACIT reported in 145 ITD 271 for this proposition. 6. We have carefully considered the rival contentions. In the present case the order of the ITAT is dated 24.10.2006 and the appeal before the Hon ble Delhi High Court was filed in 2007 in the case of the assessee vide ITA No. 742/2007, which was decided by the Hon ble High Court on 29.11.2010. Provisions of section 158BFA(3)(c) provides that no order imposing a penalty u/s 158BFA(2) shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) in a case where the assessment 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 the Chief Commissioner or the Commissioner, whichever period expires later According to the above provision, no order imposing penalty shall be made where assessment is subject matter of an appeal to the Appellate Tribunal u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onse to the show cause notice to keep the penalty proceedings in abeyance because the M.A. was pending before the Tribunal. It is also noted in the impugned order that the final order of the Tribunal in M.A. was received by the concerned CIT on 02.07.2007. Therefore, penalty order passed on 28.08.2007 is passed within the period of limitation provided under the above provisions. We do not agree with the findings of the authorities below in this regard. Section 158BFA(3)(c) with regard to the period of limitation for passing the penalty order refers to the assessment which remained subject matter of appeal before the Tribunal u/s. 253 of the IT Act, i.e., the main appeal filed by the assessee challenging the quantum addition. The said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that proceedings may be kept in abeyance on filing the M.A., the AO should not have waited for the result of M.A. and should have proceeded with the levy of penalty in the matter. If the AO is misguided by the assessee, the period of limitation cannot be extended under such circumstances because there is no provision in law to take care of such situation. The authorities below, therefore, wrongly computed the period of limitation from the date of the order received on passing the order on miscellaneous application. Considering the above discussion, we are of the view that the penalty order dated 28.08.2007 is clearly passed after the period of limitation as against the provisions of section 158BFA(3)(c) of the IT Act. We accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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