9911796707
TMI Blog2023 (6) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... loss. In addition to that, ld. first appellate authority also disallowed the sum of Rs. 49,12,978/- out of the establishment expenses on adhoc basis. Thereafter before the Tribunal, the assessee got relief in parts. Ld. AO initiated penalty proceedings and levied penalty upon the additions and disallowances made by him in the assessment order as well as the disallowance made by the First Appellate Authority, by way of enhancement. The Ld. CIT(A) while disposing of the appeal against the impugned penalty has set aside the penalty order for which the Revenue is in appeal raising following grounds :- 1. "Whether on the facts and circumstances of the case & in law, the Ld. CIT(A) erred in deleting penalty imposable u/s 271(1)(c) on disallowance of loss of Rs. 1,94,82,909/- by treating the same as speculation loss? 2. Whether on the facts and circumstances of the case, the order of Ld. CIT(A) is perverse in nature in stating that CIT(A) did not initiate penalty proceedings with respect to these two disallowances made by him whereas, penalty proceedings were duly initiated by CIT(A) while deciding the appeal against quantum order ? 3. Whether on the facts and circumstances of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the cross objections immediately on appearance though had filed the paper book. As the cross objections being questions of law can very well be admitted by this appellate authority in the light of judgement of Hon'ble Supreme Court of India in Geotze India Pvt. Ltd. vs. CIT (2006) 284 ITR 323 (SC). Accordingly, the delay is condoned and cross objections are taken up for adjudication on merits prior to the appeal as the same have raised pure questions of law. 6. Ground no. 1 of Cross Objections; It can be observed that following are the relevant dates and sequence of events which are canvassed by Ld Sr. Counsel for the assessee : 1st 17.12.2009 Assessment order was passed. 2nd 28.02.2011 Quantum appeal was decided by CIT(A). 3rd 09.05.2011 Assessing Officer gave appeal effect to the order of Ld. CIT(A). 4th 28.10.2011 Ld. CIT(A) rectified the order u/s 154. 5th 31.05.2013 ITAT decided the quantum appeal. 6th 30.03.2013 The penalty order was passed by assessing officer. 7. It was submitted by Ld. Sr. Counsel that in the present case in the light of provisions of Section 275(1)(a) of the Act, penalty order could not have been passed after 31.03.2010 i.e. the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition 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 Chief Commissioner or Commissioner, whichever is later;" 9.1 Interpreting this Section, Hon'ble Delhi High Court in the case of Commissioner Of Income Tax vs Mohair Investment And Trading (2012) 345 ITR 51 Delhi has taken note of the judgment of Hon'ble Madras High Court in Rayala Corporation P. Ltd. (2007) 288 ITR 452 (Mad) and held in para 10 and 11 as follows :- "10. From a plain reading of the relevant Sections it is clear that the period of six months provided for imposition of penalty under Section 275(1)(a) starts running after the successive appeals from an assessment order has been finally decided by the CIT(A) or the ITAT as the case may be whichever period expires later. The proviso to section 275(1)(a) has only had the effect of extending the period of imposing penalty from six months to one year within the receipt of the order of the Commissioner after 1st June, 2003. The proviso thus carves out an exception from the main Section inasmuch as in cases where no appeal is filed before the ITAT t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.02.2011 again notice u/s 271(1)(c) of the Act was issued on 04.02.2013 and the penalty proceeding was fixed for 11.02.2013, wherein on behalf of the assessee a request was made that the quantum appeal was pending before the Delhi Tribunal and till the decision of same the penalty proceedings be kept in abeyance. But Ld. AO proceeded to adjudicate the penalty proceedings. 12. What is relevant is that in the case in hand though the Ld. CIT(A) has passed rectification order on 28.10.2011, second notice u/s 271(1)(c) of the act was issued on 04.03.2013. That itself is beyond the period of Six months from the rectification order. Further the matter of fact is that the appeal giving effect order was already passed by the Ld. AO on 09.05.2011. Therefore actually from that date the limitation has to be seen. It appears that Ld. AO after issuing the initial notice u/s 271(1)(c) of the Act on 17.12.2009, keeping the proceedings in abeyance, has assumed jurisdiction to pass the order dated 30.03.2013 on the basis of subsequent notice u/s 271(1)(c) of the Act dated 04.02.2013 which was issued after the receipt of CIT(A)'s rectified order. There was no justification to issue a fresh notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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