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TMI Blog2019 (8) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... 71(1) (c) of the Income Tax Act, 1961 (Act) levying penalty at 100% of the tax sought to be evaded. 3. For the sake of convenience the facts in WP(C) No. 5577/2018 are discussed in detail. The Petitioner M/s GE Energy Parts Inc. (GEPI) is a company incorporated in United States of America (USA). It is also a tax resident of USA. GEPI is engaged in the business of manufacture and offshore sale of highly sophisticated equipment such as gas turbine parts and sub-assemblies. GEPI states that it sells its products offshore on a principal to principal basis to customers all over the world, including those in India. It is stated that the title to the goods sold to Indian customers passes from GEPI outside India. 4. On 2nd March, 2007 a survey under Section 133 A of the Act was conducted at the Liaison Office of General Electric International Operations Company Inc. ('GEIOC') at New Delhi. Based on the above survey, by an order dated 27th March, 2018 the Assessing Officer (AO) initiated reassessment proceedings of GEPI for Assessment Years (AYs) 2002-03 to 2006-07 by issuing notices under Section 148 of the Act. Subsequently by an order dated 30th December, 2008 the AO completed the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was contended by GEPI that since the order levying penalty was not passed within six months of receipt by the Revenue of the order of the ITAT, the penalty SCN was time barred. 9. Meanwhile, aggrieved by the order dated 27th January, 2017 of the ITAT, GEPI filed separate appeals for the said AYs in this Court under Section 260-A of the Act on 11th August, 2017. These appeals being ITA Nos. 674/2017, 675/2017, 677/2017, 629/2017, 628/2017 & 671/2017 were for AYs 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2006-2007 & 20072008 respectively. The said appeals are stated to be pending. 10. Respondent No.1 on 22nd May, 2017 passed separate orders under Section 254/143(3) of the Act for the aforementioned AYs giving appeal effect to the order dated 27th January, 2017 of the ITAT. 11. On 19th September, 2017 Respondent No.1 issued a separate penalty SCN to GEPI for AY 2001-2002 requesting them to appear before him on 26th September, 2017 to show cause as to why penalty should not be levied under Section 271(1) (c) of the Act. 12. Pursuant to the above SCN, Respondent No.1 on 19th September, 2017 passed a penalty order stating that the order dated 27th January, 2017 passed by the ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents has stated that judgment of the Full Bench of this Court in Commissioner of Income Tax v. Odeon Builders (P) Ltd, [2017] 393 ITR 27(Del)(FB) has been challenged, but stay order has not been passed. The petitioner has referred to several decisions of the Delhi High Court in which the writ' courts have interfered and set aside assessment orders as barred by limitation, notwithstanding the alternative statutory remedy. Till the next date of hearing, no coercive steps for recovery would be taken on account of additions made. Without prejudice to the rights and contentions of the petitioner, the petitioner would file appeals before the Commissioner of Income Tax (Appeals). This observation/direction is being made, as learned counsel for the petitioner has stated that statutory appeals have not been preferred. However, appeals would not be taken up for hearing till the next date of hearing. Dasti." 20. The aforementioned interim orders continue till date. 21. In response to the notice issued in the petitions, a counter affidavit has been filed in each of the petitions by the Respondents. In the counter affidavit filed in WP(C) No. 5577/2018, it is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, whichever period expires later : Provided that in a case where the relevant assessment or other order is the subject-matter of an appeal to the Commissioner (Appeals) under section 246 or section 246A, and the Commissioner (Appeals) passes the order on or after the 1st day of June, 2003 disposing of such appeal, an order imposing penalty shall be passed before 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 within one year from the end of the financial year in which the order of the Commissioner (Appeals) is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, whichever is later; (b) in a case where the relevant assessment or other order is the subject-matter of revision under section 263 or section 264, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent context as well: "51. .... Q: (i) What is the correct interpretation to be placed on the expression "received by the Assessee or the Principal Chief Commissioner or the Chief Commissioner or Principal Commissioner" in Section 260A (2) (a) of the Act? Does it mean 'received' by any of the named officers including the Commissioner of Income-tax (Judicial)? Ans: The word "received' occurring in Section 260A (2) (a) would mean received by any of the named officers of the Department, including Commissioner of Income-tax (Judicial). The provision at present names four particular officers i.e. the Principal Commissioner, Commissioner, Principal Chief Commissioner, and the Chief Commissioner of Income Tax. These are the only designations of the officers who could receive a copy of the order. In the absence of a qualifying prefix "concerned", the receipt of a copy of the order of the ITAT by any of those officers in the Department including the Commissioner of Income-tax (Judicial) will trigger the period of limitation. Q: (ii) Does limitation begin to run for the purposes of Section 260A (2) (a) only when a certified copy of the order of the ITAT is received by the & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. The claim that the ITO, Judicial-II received the copy of the order dated 27th January 2017 of the ITAT only on 31st October, 2017 contradicts the fact that an appeal effect was given to the ITAT order by an order dated 22nd May, 2017 itself which clearly meant that the ITAT order was already available on that date. Further in the replies received by the Petitioner in response to the application filed by it under the RTI, the CPIO has clearly stated that "the said order of Hon'ble ITAT was dispatched by the Registry of the ITAT on 11th April, 2017 and received by the office of the CIT (Judicial) on 17th April, 2017." The proof of service has also been enclosed to that letter. These facts have not been denied by the Respondents. This Court is, therefore, unable to accept the plea of the ITO, Judicial-II that copy of the order of the ITAT was received only on 31st October, 2017 and could, therefore, be sent to the CIT (IT) only on 1st November, 2017. 33. If an officer of the Department is allowed to choose a date on which a copy of the order which has to be given effect to or acted upon is sent to the officer concerned, it will defeat the very purpose for which the legislature ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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