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TMI Blog2019 (5) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case and in law, penalty order dated 19.05.2011 levying penalty under section 158BFA(2) of the Income Tax Act, 1961 is without jurisdiction, bad in law and void-ab-initio. 1.1 That on the facts and circumstances of the case and in law, penalty order dated 19.05.2011 having been passed beyond the period of limitation prescribed in terms of clause (c) of sub-section (3) of section 158BFA of the Act, is illegal and bad in law. 2. The appeal is barred by limitation by 30 days. The assessee has filed a letter requesting the condonation of the delay supported by the affidavits of the Director and also the Counsel of the assessee. The DR strongly objected to the condonation of the delay by placing reliance on the decision of the Coordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 reversed the order of the Tribunal and the order of the Assessing Officer was restored. 8. The impugned penalty order framed u/s 158BFA of the Act is dated 19.05.2011 and in our considered view, the same is barred by limitation in terms of clause (c) of sub-section (3) of section 158BFA of the Act. 9. Section 158BFA(3)(c) of the Act stipulates that no order imposing penalty under section 158BFA of the Act shall be passed: (a) 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; or (b) six months from the end of the month in which the order of the CIT(A) or ITAT is received by the Pr. CCIT/CCIT/CIT; Whichever period expires later. 10. A per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision relied upon by the Ld. AR of coordinate bench of Arvind Kr. Jain vs. ACIT (supra) has decided the issue on identical facts and circumstances, wherein such order of penalty was barred by limitation, 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 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiated in November, 2002, penalty should not be imposed after expiry of the financial year, in which action for imposition of penalty has been initiated, are completed i.e., by 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 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 requeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty proceedings may be kept in abeyance, as the assessee is filing MA u/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 u/s 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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