TMI Blog2023 (6) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... into account, the order dated 30.03.2013 stands barred by limitation, as for the purpose of Section 275(1)(a) of the Act, the period of 6 months for disposal of appeal had to be reckoned from receipt of order of Ld. CIT(A). Non-striking of the limb in the notice - DR could not dispute the fact that these notices were issued on cyclostyle formats. In this regard, there is a consistent view of the Tribunal following the Delhi High Court judgment in PCIT v. Sahara India Life Insurance Co. Ltd. [ 2019 (8) TMI 409 - DELHI HIGH COURT] that non-striking of the limb in the notice vitiates the penalty order. In the case in hand on behalf of the Ld. DR an attempt was made to defend the notices submitting that there are allegations of both concealment and of furnishing inaccurate particulars, then in that case it was all the more necessary to identify and convey to the assessee under the notice as to which particular set of allegations he needs to defend. The Bench is inclined to sustain the grounds raised in the cross objections, consequently, the same are allowed - ITA No. 2281/Del/2014 C.O. No. 204/Del/2014 (Arising out of ITA No. 2281/Del/2014) - - - Dated:- 3-5-2023 - SH. N. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Ld. CIT(A) is erroneous and is not tenable on facts and in law. 5. That the grounds of appeal are without prejudiced to each other. 6. That the appellant craves leave to add, alter, amend or forgo any ground(s) of the appeal either before or at the time of the hearing of the appeal. 3. Cross objections have also been raised on behalf of the assessee as follows :- 1. That the order-dated 30.03.2013 passed by the DCIT Circle-5(1), New Delhi for AY 2007-08 imposing the penalty u/s 271(1)(c) of the Income Tax Act is barred by limitation and therefore is void ab-initio. 2. That the notice issued by the Assessing Officer u/s 274 r/w section 271(1)(c) initiating the penalty proceeding is bad-in-law as it did not specify as to under which limb of section 271(1)(c), the penalty proceeding had been initiated .e. whether for concealment of particulars of income or for furnishing inaccurate particulars of income. 3. That omission of the Assessing Officer to explicitly mention that penalty proceeding are being initiated for furnishing of inaccurate particulars of income or that for concealment of particulars of income makes the penalty order liable fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer has not waited for the outcome of the order of Tribunal and he chose to proceed with the penalty proceedings, so the provisions of Section 275(1)(a) of the Act, providing for passing penalty order in six months from the end of month in which the order of the CIT(A) is passed, would in any case be applicable. In this context she also submitted that that as appeal giving effect order has been passed by Ld. AO on 09.05.2011, therefore, it can be presumed that the order passed by Ld. CIT(A) was received by the Ld. Assessing Officer before 09.05.2011, so assuming the period of Six months from this date 09.05.2011, the penalty order could not have been passed after 30/11/2011. 8. Ld. DR however submitted that the order is not beyond limitation on basis of fresh notice after rectification order. 9. Appreciating the matter on record and the submission, to draw a reasonable finding provisions of Section 275(1)(a) of the Act, are vital and same are reproduced below :- 275. (1) No order imposing a penalty under this Chapter shall be passed- (a) in a case where the relevant assessment or other order is the subject- matter of an appeal to the Deputy Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he main provision itself. In this behalf it is necessary to remember that a proviso is merely a subsidiary to main Section and must be construed in the light of the Section itself. It has to be construed harmoniously with the main provision. This conclusion is fortified by the decision of the learned Judge in Rayala Corporation (supra), where it was held that in case where an appeal is pending before the Tribunal the limitation period for levy of penalty can only be as provided for under Section 275(1)(a), i.e., six months from the end of the month in which the order of the Tribunal is received by the Commissioner. Insofar as the submission with regard to the Section being read in consonance with Section 275(1A) is concerned, we are of the opinion that the latter Section which was introduced later on does not dilute or in any manner render nugatory the main provision, which can only be read to mean that the limitation period for levy of penalty, only in the case of order of the Tribunal, to be as provided under the main Section and not otherwise. 11. Thus we are of the view that the proviso to Section 275(1)(a) of the Act does not nullify the availability to the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to revive the penalty proceedings or to have waited further for the order from Tribunal. Thus, for the purpose of exercising jurisdiction to pass the penalty order the Ld. AO was supposed to proceed on receiving the order of ld. CIT(A) dated 28.02.2011 and when that is taken into account, the order dated 30.03.2013 stands barred by limitation, as for the purpose of Section 275(1)(a) of the Act, the period of 6 months for disposal of appeal had to be reckoned from receipt of order of Ld. CIT(A). Ground deserves to be sustained. 13. Ground no. 2 to 4 of Cross objections; It can be observed that on behalf of the assessee it is claimed that the notice u/s 271(1)(c) of the Act dated 17.12.2009 or the notice dated 09.05.2011, was not issued identifying the limb under which the same has been issued and thus notices are ambiguous to the fact as to if the charge of concealment of particulars of the income or furnishing inaccurate particulars of such income is made out. Ld. DR could not dispute the fact that these notices were issued on cyclostyle formats. In this regard, there is a consistent view of the Tribunal following the Delhi High Court judgment in PCIT v. Sahara India Life ..... X X X X Extracts X X X X X X X X Extracts X X X X
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