TMI Blog2019 (8) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Limited (FB) [ 2017 (3) TMI 1266 - DELHI HIGH COURT] , the ratio decidendi of which will apply to the case on hand as well since the language of Section 260 A (1) and Section 275 (1) (a) is identical. The impugned orders of penalty dated 26th April 2018 were issued far beyond the six-month period of limitation in terms of Section 275 (1) (a) of the Act and were, therefore, invalid. On the date that the said orders were issued, i.e. 26th April, 2018 they were without jurisdiction. Maintainability of writ petitions - HELD THAT:- This Court negatives the objection of the Respondents to the maintainability of the present writ petitions. In CIT v. Chhabil Das Agrawal [ 2013 (8) TMI 458 - SUPREME COURT] , the Supreme Court took note of the fact that normally the existence of an alternative remedy should discourage writ petitions under Article 226 of the Constitution being entertained. However, as explained by the Supreme Court in Whirlpool Corporation v. Registrar of Trademarks [ 1998 (10) TMI 510 - SUPREME COURT] there are exceptions to this rule one of which is that the order under challenge is itself without jurisdiction. In the present case the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had a fixed place of Permanent Establishment (PE) and dependent agent PE ( DAPE ) in India. The AO deemed 10% of the value of supplies made to the clients in India as the profits arising out from such supplies and attributed 35% of such profit to GEPI s PE in India. In essence, the AO attributed 3.5% of the total value of supplies made by GEPI to customers in India, as the income of the GEPI. Simultaneously the AO also initiated penalty proceedings against GEPI under Section 271(1) (c) of the Act for the aforementioned AYs. 5. Aggrieved by the above assessment order dated 30th December 2018, GEPI filed separate appeals before the Commissioner of Income Tax (Appeals) [CIT (A)]. By an order dated 30th September, 2010 the CIT (A) upheld the order of the AO in so far initiation of proceedings under Section 147/148 of the Act, existence of PE and attribution of income were concerned. However, the appeal was allowed on the issue of levy of interest under Section 234 B of the Act. 6. For AY 2007-2008 the return of GEPI was selected for scrutiny. The AO passed a draft order which was challenged before the Dispute Resolution Panel (DRP). The draft assessment order was uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was received by Respondent No.1 on 18th April, 2017. 13. Thereafter, Respondent No.1 again issued another penalty SCN dated 16th November, 2017 seeking to levy penalty on GEPI under Section 271(1) (c) of the Act for AYs 2002-2003 to 2006-2007. 14. In response to the aforementioned SCNs GEPI filed two letters dated 15th February, 2018 and 28th February, 2018 again submitting that the penalty proceedings were barred by limitation. 15. Thereafter, Respondent No.1 passed impugned penalty orders dated 26th April, 2018 for the aforementioned AYs. In the said orders Respondent No.1 observed that the order dated 27th January, 2017 passed by the ITAT had been received in his office only on 1st November, 2017. 16. GEPI filed an application under the Right to Information Act, 2005 (RTI) before the Central Public Information Officer (CPIO) of the ITAT seeking to know when a copy of the order dated 27th January, 2017 was in fact served upon the Revenue. In response to the said application, GEPI received a reply dated 17th May, 2018 from the CPIO of the ITAT confirming that the order dated 27th January, 2017 of the ITAT was served on the Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled in each of the petitions by the Respondents. In the counter affidavit filed in WP(C) No. 5577/2018, it is contended inter alia that an efficacious statutory remedy is available to each of the Petitioners against the impugned penalty orders. Reference is made to the decision in CIT v. Chhabil Dass Agarwal (2014) 1 SCC 603. 22. As regards the plea that the penalty orders are beyond the period of six months from the end of the month in which the order was received by the CIT (A) in terms of Section 275 (1) (a) of the Act, it is contended that the limitation expired only on 30th May, 2018 since according to the Respondents, the order of the ITAT was received by the jurisdictional CIT i.e. CIT International Taxation-1 only on 1st November, 2017. 23. It is pointed out by the Respondents that reliance by the Petitioners on the decision of the Full Bench of this Court in Commissioner of Income Tax v. Odeon Builders Private Limited (supra) is misplaced since that decision was in the context of limitation for filing an appeal under Section 260A (2) (a) of the Act i.e. filing an appeal in this Court against the order of the ITAT. However, in the present case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the expiry of six months from the end of the month in which such order of revision is passed; (c) in any other case, 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 action for imposition of penalty is initiated, whichever period expires later. 26. It is seen that more or less the same expression Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as used in Section 260A of the Act finds place in Section 275(1) (a). The limitation begins to run on the expiry of six months from the end of the month in which the order of the ITAT is received by any of the above officers. 27. There are two periods of limitation within which the penalty proceedings have to be completed. One is the expiry of the financial year in which the proceedings in the course of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 'concerned' Commissioner of Income-tax within whose jurisdiction the case of the Assessee falls notwithstanding that it may have been received by any other Commissioner of Income-tax, including the Commissioner of Income-tax (Judicial) prior thereto? Is it open to the Court to read the word 'concerned' into Section 260A (2) (a) of the Act as a prefix to any of the officers of the Department named therein? Ans : In Section 260A (2) of the Act, the words Commissioner of Income-tax, Pr Commissioner of Income-tax or Chief Commissioner of Income-tax are not prefixed or qualified by the word 'concerned'. There is no warrant for the Court to read into the provision such a qualifying word. The Court rejects the contention of the Revenue that limitation for the purposes of Section 260A (2) (a) begins to run only when a certified copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 has stipulated definite time limits in various provisions of the Act for the authorities to perform their statutory tasks in a time bound manner. In other words, the mandatory period of limitation under Section 275 (1) (a) of the Act cannot be sought to be defeated by delaying the dispatch of the relevant order of the ITAT to the concerned jurisdictional CIT. What is relevant is when the CIT (Judicial) representing the Department before the ITAT received the order, which in any event is generally made available in the public domain soon after the order is pronounced. This is purport of the decision of the Full Bench of this Court in Commissioner of Income Tax v. Odeon Builders Private Limited (FB) (supra), the ratio decidendi of which will apply to the case on hand as well since the language of Section 260 A (1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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