TMI Blog2016 (3) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... sion is passed. In such a situation, an order imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty may be passed on the basis of assessment as revised by giving effect to the appellate order or the revisional order. In the present case, no order either imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty stands passed. That being so, the provisions of section 275(1A) are not applicable. Penalty order is hit by the proviso to section 275(1)(a) of the Act. Going by the para-meters laid down therein in the said section, the penalty order is clearly beyond the limitation provided therein. - Decided against revenue. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a fresh assessment order on 31.12.1999 and assessed the income at ₹ 5,78,330/- and also initiated penalty proceedings u/s 271(1)(c) but did not complete the penalty proceedings. The assessee in the mean time again filed appeal before learned CIT(A) and learned CIT(A) decided the issued in favour of assessee vide order dated 09.10.2000. Against the order of learned CIT(A), the Revenue filed appeal before ITAT and ITAT dismissed the appeal filed by Revenue vide order dated 27.06.2005. The Revenue filed appeal against the order of Tribunal before Hon ble High Court and the Hon ble High Court vide order dated 17.02.2011decided the issue in favour of Revenue. The Assessing Officer in view of the order of Hon ble High Court after giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned and therefore, the case was time barred as rightly held by learned CIT(A). Reliance in this case was placed on the following case laws: (i) B.N. sharma vs. CIT 226 ITR 442 (SC) (ii) Cosmo Films Ltd. vs. ACIT (ITAT, Delhi Bench) in ITA No.2192(Del)2010. (iii) Additional Director of Income Tax vs. Pioneer Overseas Corporation 34 CCH 189 Del Trib 7. We have heard the rival parties and have gone through material placed on record. We find that Assessing Officer had initiated the penalty proceedings on 31.12.1999 but did not pass any penalty order and it was only after the Hon ble High Court decided the issue in favaour of Revenue that penalty proceedings were revived. From the provisions of section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2003, as available from the record. It was received by the Department on 7.8.2003, as unrebuttedly contended by the learned counsel for the assessee. Thus, as per the proviso to section 275(1)(a) of the Act, the penalty order ought to have been passed on or before 31.3.2005, i.e., within one year from the end of financial year in which the Id. CIT(A)'s order was received back by the Department. The penalty order, however, got to be passed only on 28.7.2009. That being so, the contention of the assessee is correct. The penalty order is clearly barred by limitation provided by the proviso to section 275(1 )(a) of the Act. 12. Apropos the Department s contention that the case is covered by the proviso to section 275(1A) rather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the proceedings for the imposition of penalty passed before the appellate order is received by the Department or order of revision is passed. In such a situation, an order imposing or enhancing or reducing or canceling penalty or dropping the proceedings for the imposition of penalty may be passed on the basis of assessment as revised by giving effect to the appellate order or the revisional order. 14. However, in; the present case, no order either imposing or enhancing or reducing or cancelling penalty or dropping the proceedings for the imposition of penalty stands passed. That being so, the provisions of section 275(1 A) are not applicable. 15. In view of the above, the penalty order is hit by the proviso to sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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