9911796707
TMI Blog2023 (12) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirming the levy of penalty u/s 272A(2)(e) of the Act in the case of the appellant as levied by the JCIT. The orders as passed/confirmed being void ab initio, without Jurisdiction and are liable to be quashed. 2.1 In any case, the learned CIT(A) has erred in not appreciating the fact that the initiation- of penalty proceedings and consequential order passed levying penalty u/s 272A(2)(e) of the Act are barred by limitation and erred in holding that the limitation period got extended by TOLA and thereby confirming the validity of the order instead of quashing the impugned order as barred by limitation. 2.2 In any case there being no proper Initiation of penalty proceedings, the impugned order becomes bad in law and is liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed or 6 months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later. Thus, she submitted that in the present case, notice u/s 274 of the Act has been issued on 21.12.2020. As such, penalty order to be passed on or before 30th June, 2021. However, in the present case, penalty order has been passed on 5.3.2022, which is time barred. For this purpose, she relied on the order of the Tribunal in the case of Amit Sabharwal in ITA No.886/Del/2018 dated 14.5.2019. In the present case, as per clause (c) of section 275(1) of the Act, the penalty proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, penalty order has been passed on 5.3.2022 which is within time. On this count, the assessee have no case. 3.2 However, the other argument of the ld. A.R. is that initiation of penalty proceedings itself is bad in law as it was initiated vide notice dated 21.12.2020 and the initiation ought to have been done within the reasonable time after completion of assessment. According to her, in the present case, the assessee's return of income has been accepted as it is, as such, copy of return of income filed on 31.3.2017 to be considered as copy of assessment order for all practical purposes. The ld. AO ought to have initiated the penalty proceedings within reasonable time from this date and in the present case, since it has been initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CIT vs. NHK Japan Corporation reported in 305 ITR 132. 3.3 In the present case also, the assessee has filed return of income for the assessment year 2014-15 on 31.3.2017. There was no regular assessment and the return of income has been accepted as it is. In our opinion, copy of the return of income itself serve as an assessment order for all practical purposes. So the penalty proceedings has been initiated vide notice dated 21.12.2020, which is approximately after lapse of 45 months. Therefore, the penalty order passed by ld. AO u/s 272A(2)(e) of the Act is not within reasonable time. 3.4 Further, the Hon'ble Delhi High Court in the case of PCIT Vs. JKD Capital & Finlease Ltd. in ITA No.780 of 2015 vide judgement dated 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the said order in the quantum proceedings to be disposed of before the penalty proceedings could be initiated. In other words, the initiation of penalty proceedings did not hinge on the completion of the appellate quantum proceedings. This position has been made explicit in the decision in CIT v. Worldwide Township Projects Limited (supra) in which the Court concurred with the view expressed in Commissioner of Income- Tax v. Hissaria Bros. (2007) 291 ITR 244(Raj) in the following terms: "The expression other relevant thing used m s. 275(l)(a) and cl. (b) of Subs. (1) of S. 275 is significantly missing from cl. (c) of s. 275(1) to make out this distinction very clear. We are, therefore, of the opinion that since penalty proceedings for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, referred the matter concerning penalty proceedings under Section 271-E to the Additional CIT. For some reason, the Additional CIT did not issue a show cause notice to the Assessee under Section 271-E (1) till 20th March 2012. There is no explanation whatsoever for the delay of nearly five years after the assessment order in the Additional CIT issuing notice under Section 271-E of the Act. The Additional CIT ought to have been conscious of the limitation under Section 275 (1) (c), i.e., that no order of penalty could have been passed under Section 271-E after the expiry of the financial year in which the quantum proceedings were completed or beyond six months after the month in which they were initiated, whichever was later. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
