TMI Blog2019 (5) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 - - - Dated:- 23-5-2019 - Shri Bhavnesh Saini, Judicial Member And Shri N.K. Billaiya, Accountant Member For the Assessee : Shri Rohit Jain, Adv., Ms. Deepashree Rao, CA And Shri Vibhu Gupta, CA For the Revenue : Ms. Ashima Neb, Sr. DR ORDER PER SHRI N.K. BILLAIYA, A.M. With this appeal the assessee has challenged the correctness of the order of the CIT(A)-29, New Delhi dated 23.03.2016 pertaining the block period 01.04.1989 to 13.01.2000. The substantive grievance of the assessee reads as under: 1. That on the facts and circumstances of the case and in law, penalty order dated 19.05.2011 levying penalty under section 158BFA(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the penalty order is not barred by limitation. 6. We have given a thoughtful consideration to the orders of the authorities below qua the issue. 7. Facts on record show that the assessment order was passed by the AO u/s 158BC read with section 158BD of the Act on 10.06.2002. The assessment was assailed before the CIT(A) and the CIT(A) confirmed the addition made by the AO, vide order dated 14.11.2002. The assessee carried the matter before the Tribunal and the Tribunal vide order dated 03.08.2007 reversed the order of the CIT(A) and the additions made by the AO were deleted. The Revenue preferred appeal before the Hon ble Delhi High Court and the Hon ble Delhi High Court vide order dated 29.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered 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) shall be levied in case where the assessment is subject matter of the appeal before the Tribunal then a) After the expiry of the financial year in which the proceedings in the course of which action for imposition of penalty has been initiated are completed or b) Six month from the end of the month in which the order of the Tribunal is received by the Commissioner, Whiche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 253 after 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 init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 on quantum, 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 MA 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, hold the penalty order so passed is time barred. Resultantly, no penalty could be levied against the assessee. In view of the above, there is no need to consider the levy of penalty on merits. We, therefore, set aside the orders of the authorities below levying and confirming the penalty, and allow the appeal of the assessee. 7. Ld. DR did not controvert the above position of the law as well as could not point out any judicial precedent taking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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