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Income Tax Appellate Tribunal, DELHI BENCH “G”: NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI L.P. SAHU
PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the assessee against impugned order dated 11.3.2019, passed by Ld. CIT (Appeals) 8, New Delhi in relation to the penalty proceedings u/s 271(1)(c) for the assessment year 2010-11.
The assessee is mainly aggrieved by levy of penalty of Rs. 11,58,088/-. In various grounds of appeal assessee has not only challenged the penalty on merits but also on two legal grounds; firstly, that the penalty notice itself is illegal because it does not specify any specific default, that is, whether penalty proceedings is being initiated for concealment of income or for filing of inaccurate particulars of income; and secondly, penalty order passed by the AO is barred by limitation in view of section 275.
3. Before us, Ld. Counsel on the issue of limitation pointed out that here in this case the penalty has been levied after passing of Tribunal order in the quantum proceedings. The Tribunal has passed the order vide order dated 6.3.2018, whereby the appeal of the assessee was dismissed ex parte for non prosecution of the case. The said order of the Tribunal was served upon to the Departmental Representative on 16.3.2018; and in support, he has placed relevant evidence for service of order to the DR. He submitted that, now in view of the judgment of Hon’ble Jurisdictional High Court in the case of Surender Kumar Jain reported in (2018) 100 taxmann.com 38 (Delhi), wherein the Hon’ble High Court has held that the limitation for the purpose of Income Tax Act begins from the point of time when the Departmental Representative receives the copy of the decision or an order of the ITAT. Thus, the penalty order should have been passed on or before 30.9.2018, whereas the same has been passed on 30.10.2018. The finding of the Ld. CIT (A) in para 4.2 on this issue is incorrect in law and on facts.
3. On the other hand, Ld. DR submitted that here in this case, Ld. AO has categorically stated that order of the ITAT was received in the office of CIT (Judicial) on 6.4.2018 and, therefore, the penalty order could have been passed on or before 31st October, 2018, i.e., six months from the end of the month in which the order of the Tribunal is received to the Pr.CIT or Commissioner. Thus, the limitation has to be seen from the date on which order was received in the office of the CIT (Judicial), which was on 6.4.2018.
4. After considering the aforesaid submissions and on perusal of the relevant facts and material placed on record, we find that here in this case penalty has been levied on account of following additions:-
(a) Addition of Rs. 25,48,738/- on account of incorrect disclosure of agriculture income. (b) Addition of Rs. 5,22,773/- on account of personal expenditure. (c) Rs. 3,17,635/- u/s 40A(3) of the Act. (d) Rs. 1,50,000/- on account of ROC fees being capital in nature.
AO has initiated the penalty proceedings after passing of the Tribunal order dated 6.3.2018, which has been dismissed ex parte on the ground of the non prosecution. Before us, Ld. Counsel for the assessee has submitted reply received from the office of ITAT in response to RTI Application dated 12.3.2019. The typed version of the said reply is reproduced hereunder:-
“No. 011/RTI/2019 INCOME TAX APPELLATE TRIBUNAL 6th, 10th & 11th Floor, Lok Nayak Bhawan, Khan Market, New Delhi – 110 003 Dated: 25/03/2010 To, Shri B.S. Rawat, Director, Shree Lal Mahal Ltd. B-5, Punjabi Bagh, West Delhi, Delhi – 110 026. Sub : Your application dated 12/03/2019, received in this office on 15/03/2019 Sir, The information sought by you under RTI Act, 2005 is as under :-
INFORMATION SOUGHT REPLY On which date tribunal order in The tribunal order in No. 4234/2013 (A.Y.2010-11) 4234/2013 (A.Y. 2010-11) in was served upon the Sr. DR the case of Shri Lal Mahal Ltd. was served upon the office of Commissioner of Income Tax (DR) on 16/03/2018 You are hereby, informed that if you are not satisfied with the information provided herewith, the appeal lies with the First Appellate Authority under RTI Act, ITAT, Delhi Benches, New Delhi.