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10-07-2019, Brinsar Foods, Section 246, 246A, 253, Tribunal Chandigarh

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1 week 22 hours ago #10037 by amit
Section - 246, 246A, 253, 254(3), 260A(2)(a)
Order Date - 10-07-2019
Favouring - Assessee
Court - Tribunal Chandigarh
Appellant - Brinsar Foods Pvt Ltd.
Respondent - DCIT
Justice - N.K. SAINI VP & SANJAY GARG JM
Citation - 719Taxpundit131
Appeal No. - IT(SS) No. 01/CHD/ 2019
Asstt. Year - 2001-02

Order

PER : Sanjay Garg

The present appeal has been preferred by the assessee against the order dated 26.11.2018 of the Commissioner of Income Tax (Appeals)-3, Gurgaon [hereinafter referred to as CIT(A)] agitating the levy of penalty u/s 158 BFA(2) of the Income Tax Act, 1961 (in short 'the Act').

2. The assessee in this appeal has taken following grounds of appeal:-

1. That the order of Ld. CIT(A) is bad, against the facts and law.

2. That the Ld. CIT(A) has wrongly upheld the penalty levied u/s 158BFA(2) of the act after the expiry of limitation period.

3. That the Ld. CIT(A) has wrongly upheld the penalty levied of Rs. 5,42,400/- u/s 158BFA(2) of the Act.

3. Vide above grounds of appeal, the assessee has mainly agitated the validity of the penalty being levied after the expiry of the limitation period as provided u/s 158 BFA(3)(c) of the I.T. Act.

4. So far as the period of limitation relating to the levy of penalty is concerned, the Assessing Officer has noted that penalty u/s 158BFA(2) r.w.s 274 of the Income-tax Act, 1961 was initiated and notice u/s 274 r.w.s. 158BFA(2) was issued to the assessee on 29.07.2002. The penalty proceedings were kept in abeyance till the disposal of appeal by the ITAT. After the receipt of the order of the ITAT, a show cause notice dated 14.02.2017 was issued to the assessee. No reply was filed in response thereto. As no reply was received from the assessee to this notice, it was followed by reminder dated 11.04.2017. In response to
reminder, the assessee requested for dropping of penalty u/s 158BFA(2) vide written reply filed on 19.04.2017. Further, the assessee pleaded that the order dated 28.4.2017 was barred by limitation being hit by the provision of section 158BFA(3)(c) of the Act. It was pleaded that the ITAT had decided the appeal of the Department on 19.9.2014 and the order of the ITAT was received by the Department during the F.Y.2014- 15, however, the penalty was levied by the Assessing Officer vide order dated 28.4.2017 which was after completion of the two years from the end of the financial year in which the order of the ITAT was received by the Department, whereas, as per the limitation period prescribed under the provisions of section 158BFA(3)(c) of the Act, the penalty order was to be passed before the expiry of six months from the end of the month in which the order of the ITAT was received by the Principal CIT / Commissioner.

5. For the sake of ready reference, the provisions of section 158BFA(3)(c) are reproduced s under:- “158BFA (3) No order imposing a penalty under sub-section (2) shall be made,— ……….

(c) in a case where the assessment is the subject-matter of an appeal to the Commissioner (Appeals) under section 246 or section 246A or an appeal to the Appellate Tribunal under section 253, 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 the order of the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal is received by the Principal Chief Commissioner or Chief Commissioner or the Principal Commissioner or Commissioner, whichever period expires late.”

6. Now the question for determination in this case is as to on what date the order of the ITAT was received by the concerned Principal Commissioner / Commissioner, as the case may be. A specific question was asked to the Ld. DR vide order dated 27.5.2019, whereupon, the Ld. DR produced the copy of the letter dated 6.6.2019 of the concerned Assistant Commissioner of Income Tax, Circle-2(1), Chandigarh / Assessing Officer, which reads as under:-

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