ACIT, CIR-27, HALDIA, PURBA MEDINIPUR vs. SHRI PRABAL KANTI PRAMANIK, PURBA MEDINIPUR

IN THE INCOME TAX APPELLATE TRIBUNAL “B”, BENCH KOLKATA BEFORE SHRI N.V. VASUDEVAN, JM &DR. A.L.SAINI, AM आयकरअपीलसं./ITA No.821/Kol/2015 (िनधा�रणवष� / Assessment Year: 2008-09 A.C.I.T, Circle – 27, Haldia Vs. Shri Prabal KantiPramanik Dubey House, Basudevpur, Garkamalpur, Mahishadal, Khanjanchak, Haldia, Dist: PurbaMedinipur, W.B, PurbaMedinipur – 721 602. 721628 �थायीलेखासं./जीआइआरसं./PAN/GIR No.: AEYPP4276P (Revenue/Department) .. (Assessee) Revenue/Department by :Shri M. K. Biswas, Addl. CIT, DR Assessee by :Shri T.P. Kaur, FCA सुनवाईकीतारीख/ Date of Hearing : 17/08/2017 घोषणाकीतारीख/Date of Pronouncement : 11/10/2017 आदेश / O R D E R Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the Revenue,pertaining to assessment year 2008-09, is directed against the order passed by the ld. Commissioner of Income Tax (Appeals)-7, Kolkata, in Appeal No.252/CIT(A)-7/C-27/14-15, dated 13.03.2015, which in turn arises out of an order passed by the Assessing Officer u/s.271(1)(c) of the Income Tax Act 1961, (hereinafter referred to as the ‘Act’), dated 05.03.2014. 2. Before us, the Revenue has raised the following grounds of appeal:

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 “1.That the Ld. CIT(A) was not justified on facts and in law in holding that the order of penalty was time barred as it was not filed within a year of the financial year in which the order of CIT(A) was received by the CIT, taking the date of receipt of the original order by CIT(A) and not the order u/s. 154 passed by the CIT(A) as the deciding factor for calculating the time limit when the Act has not specified that the date of receipt of the original order or the first order by the CIT(A) only is to taken into consideration while calculating the time limit for levy of penalty. 2.That the Ld. CIT(A) failed to appraise the fact that even a petition u/s 154 before him is essentially an appellate proceeding in nature, even assessee's action corroborate the same fact, assessee has not challenged the original order of the Ld. CIT(A), he waited for the order of Sec. 154 petition and only after the same is pronounced he filed further appeal to ITAT under intimation to A.O. In view of the above facts and circumstances, it may very well be inferred that the action of A.O. in calculating time limit from the date of order u/s 154 by Ld. CIT(A) is well within four corners of law. 3.Further, it is also to be contemplated that as a petition u/s 154 is pending before Ld. CIT(A) and the issues have not arrived at its finality, imposition of penalty upon the assessee would be against principle of natural justice. Reliance may also be placed as the decision of Punjab & Haryana High Court in case of Dewan Engg. Works vs. CIT [2009] 319 ITR 375 (P & H) wherein it was laid down that the penalty proceedings would not be barred by limitation, where the penalty proceedings were kept in abeyance. 4.The appellant craves leaves to, add to, alter or modify any one or all of the grounds of appeal mentioned above.”

3.The brief facts qua the issue are that assessment in the assessee’s case was completed u/s 143(3) of the I.T. Act, 1961 on 26/11/2010at an income of Rs.1,44,34,260/-, as against the returned income of Page | 2

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 Rs.5,65,560/-, declared by the assessee. Since, prima facie, there was concealment of income and assessee furnished inaccurate particulars of income therefore, the provisions of Section 271(1)(c) were attracted, and penaltyproceedings were initiated by the Assessing Officer against the assessee U/s271(1)(c) of the Act. During the course of assessment proceedings, it was found that in respect of income from contract work in India, the assessee disclosed a net profit of Rs.6,02,760/- on gross contractual receipt of Rs.1,34,01,266/-. The assessee was asked to produce books ofaccounts along with all relevant bills and vouchers. But he could neither produce the booksof accounts with bills and vouchers nor offer any satisfactory explanation regarding thereasonableness of the expenditure, he claimed. The onus was on the assessee to produce books of accounts and other related documents like bills and vouchers etc. in order to prove that the profit disclosed by him in respect of his contract business was correctly determined. Since, he had failed to discharge the onus, the deeming provision of Sec. 44AD was invoked by AO to safeguard the interest of the revenue and accordingly the income of the assessee from his contract work was determined at Rs. 10,72,100/- being 8% of the total contract receipt of Rs.1,34,01,266/-. In addition to the contract income in India, the assessee claimed to have earnedincome in Oman Page | 3

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 and remitted an amount of Rs.1,15,49,688/- and added the same to hiscapital account shown in his balance sheet. On query, on this issue, the assessee clarified with a copy of annual return of income filed in Oman that he earned 1,27,613/- Oman Rial (RO1,27,613/- equivalent to INR 1,33,99,365) in Oman and out of that he remitted an amount ofRs.1,15,49,688/- in India through proper banking channel and capitalized the same. Theassessee was resident of India during the previous year relevant to the assessment year. Therefore, he was required to include this income of Rs.1,33,99,365/- in his total income. But he did not do so and therefore the same was added to his total income for taxation in India. 4. Against the said addition made, the assessee preferred an appeal before the CIT(A)-XXXIII, Kolkata, who vide order in appeal No. 73/CIT(A)- XXXIII/Kol/Circle/Hal/10-11, dated 24/01/2012, confirmed the additions, subject to the direction to the AO that the Assessing Officer to apply average rate prevailing in the year for conversion of foreign income to Indian currency and while allowing credit for income tax paid in Oman, the conversion should be made at the averagerate. However vide order u/s 154, dated11/11/2012, the CIT(A)-XXXIII had directed the A.Oto allow credit for income tax paid in Oman at the conversion rate prevailing on the date ofpayment. The Assessing Page | 4

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 Officer based on the above discussions, concluded that the action of the assessee is liable for penalty u/s 271(1)(c) of the Act. Therefore, he initiated the penalty u/s.271(1)(c) of the Act and imposed penalty on the assessee at Rs.45,04,188/-. 5.Aggrieved by the penalty order passed by the Assessing Officer, the assessee filed an appeal before the ld. CIT(A), who has deleted the penalty u/s 271(1)(c). The ld. CIT(A) observed that penalty order dated 05.03.2014 was not within limitation period prescribed u/s.275(1)(a) of the I.T. Act. The assessee stated before the Ld. CIT(A) that the penalty order passed by the Assessing Officer u/s 271(1)(c) was not within the limitation period prescribed U/s.275 (1) (a) of the Income Tax Act, 1961. The ld CIT(A) had verified the order of the Assessing Officer and found that the AO had passed the order for Assessment Year 2008-09 U/s 143(3) on 26.11.2010. The ld. CIT(A) has passed appeal order on 24.01.2012. Thereafter, the Assessing Officer has levied penalty and passed the penalty u/s.271(1)(c) order dated 05.03.2014. The Assessing Officer had calculated the time limit considering the CIT(A)’s order u/s154 of the I.T Act dated 11.11.2012 which was received by the CIT office on 11.12.2012. As per the provisions of section 275 (1) (a) of the Act, the limitation of time starts Page | 5

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 from the end of the month in which the original order of the ld. CIT(A) has been received by the revenue authorities, that is, on 09.02.2012. The ld.CIT(A) also clarified that the limitation period should not be counted from the date of CIT(A)’s order u/s154 of the I.T Act, dated 11.11.2012. The ld.CIT(A) had also referred the provisions of section 275(1) (a) of the Act, which reads as under: "An order imposing penalty shall be passed before the expiry of the financial year in which the proceedings, in the course of which action for imposition 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 [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or]Commissioner, whichever is later." The Ld. CIT(A) also held that the provision further says that in the case where the relevantassessment or other order which is subject matter of an appeal of theCommissioner (Appeals), the time limit starts only from the order of ClT(Appeals), which was originally passed by the CIT(A) on anyrelevant assessment order. The order passed u/s.154 of the Act, by theCIT(A) is not an order of any assessment order passed by the A.O., butthat is the only miscellaneous proceeding/rectification proceeding torectify any apparent mistake in original appellate order, and this does notextend the period of limitation for levy of penalty. In this case, admittedlythe A.O. passed Page | 6

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 order on 26.11.2010 and the CIT(A)'s original order dated 24.01.2012, which was received by the CIT on 09.02.2012. Therefore, the A.O. has to make the penalty order U/s.271(1)(c), on orbefore 31.03.2013. Therefore in the assessee`s case under consideration, no valid penalty order can be passed after31.03.2013 and this view had been supported by the decision of MumbaiI.T.A.T. in the case of Hongkong & Shanghai Banking Corpn. Ltd. Vs.Deputy Director of Income Tax (lntl. Tax),3(1) [2012] 136 ITD 357(Mumbai) in which the Hon'ble Tribunal had held that miscellaneousproceedings are continuous proceedings and which do not extendlimitation prescribed u/ s.275(1)(a). For this, the Hon'ble Tribunal has also relied on the ratio of Delhi Tribunal decision in the case of Oriental Insurance Co. Ltd. Vs. ACIT [I.T Appeal No.212 (Delhi) of 2008], dated31.10.2009] and Hon`ble Supreme Court in the case of CIT vs. Alagendram Finance Ltd. [2007] 162 Taxman 465. The Ld CIT(A) held that, in the assessee`s case under consideration, the A.O. had calculated the limitation from the dateof receipt of rectification order passed by the CIT(A) u/s.154 of the Act,dated 11.12.2012 and the penalty has been levied vide order dated05.03.2014, which was definitely a time barred action by the A.O.

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 Therefore,CIT(A) held that the penalty order u/s.271(1)(c) passed by the A.O. was ab initio void. 6. Not being satisfied with the order of the CIT(A), the Revenue is in appeal before us.The Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. Whereas, the ld Counsel for the assessee has defended the order passed by the Ld.CIT(A). 7.We have heard both the parties and perused the materials available on record, we are of the view that provisions of limitation u/s.275(1)(a) of the I.T.Act, mandates that an order imposing penalty shall be passed before the expiry of the financial year in which the proceedings, in the course of which action for imposition 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 [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner, whichever is later. The provision further say that in the case where the relevantassessment or other order which is subject matter of an appeal of theCommissioner (Appeals), therefore, the time limit starts Page | 8

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 only from theClT(Appeals) order, which was originally passed by the CIT(A), on anyrelevant assessment order. We are of the view that the order passed u/s.154 of the Act, by theCIT(A) is not an order of any assessment order passed by the A.O.,butthat is the only miscellaneous proceeding/rectification proceeding torectify any apparent mistake in original appellate order, This does notextend the period of limitation for levy of penalty under section 275 (1) (a) of the Act. In the assessee`s case under consideration, admittedlythe A.O. passed order on 26.11.2010 and the CIT(A)'s original order dated 24.01.2012, which was received by the CIT on 09.02.2012. Therefore, the A.O. has to pass the penalty order U/s.271(1)(c), on orbefore 31.03.2013. Therefore in the assessee`s case, no valid penalty order can be passed after31.03.2013. In the assessee`s case under consideration the penalty order U/s 271(1) (c ) of the Act was passed on dated 05.03.2014, which is time barred as per the provisions of section 275(1) (a) of the Act, as explained (supra). We also rely of the Judgment of MumbaiI.T.A.T. in the case of Hongkong& Shanghai Banking Corpn. Ltd. Vs.Deputy Director of Income Tax (lntl. Tax),3(1) [2012] 136 ITD 357(Mumbai) in which the Hon'ble Tribunal had held that miscellaneousproceedings are continuous proceedings and which do not extendlimitation prescribed Page | 9

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 U/s.275(1)(a) of the Act.We also rely on the Judgment of Hon`ble Supreme Court, in the case of CIT vs. Alagendram Finance Ltd. [2007] 162 Taxman 465, wherein it was held that in respect of an issue which was not subject matter of reassessment, limitation under Section 263(2) would run from the date of original assessment and revision proceedings initiated in respect of such issue beyond the period of two years from the date of original assessment were barred by limitation. We note that in the assessee`s case under consideration, the A.O. has calculated the limitation from the date of receipt of rectification order passed by the CIT(A) U/s.154 of the Act,dated 11.12.2012 and the penalty has been levied vide order dated05.03.2014, which is definitely a time barred action by the Assessing Officer, which is not sustainable in law. Therefore, the penalty order U/s.271(1)(c) passed by the Assessing Officer is ab initio void and therefore, we quash the penalty order and confirm the order passed by the ld. CIT(A). 8.In the result, the appeal filed by the Revenue, is dismissed. Order pronounced in the open court on this 11/10/2017. Sd/- Sd/- (N.V. VASUDEVAN) (DR. A.L.SAINI) �ाियक सद� / JUDICIAL MEMBER लेखा सद� / ACCOUNTANT MEMBER कोलकाता/Kolkata; िदनांक Dated 11/10/2017 [RS, SPS] Page | 10

Shri Prabal KantiPramanik ITA No.821/Kol/2015 Assessment Year: 2008-09 आदेशकी�ितिलिपअ�ेिषत/Copy of the Order forwarded to : अपीलाथ�/ The Assessee –Shri Prabal Kanti Pramanik 1. ��थ�/ The Revenue-A.C.I.T, Circle – 27, Haldia 2. आयकरआयु�(अपील) / The CIT(A), 3. आयकरआयु�/ CIT 4. िवभागीय�ितिनिध, आयकरअपीलीयअिधकरण, कोलकाता/ DR, ITAT, Kolkata 5. गाड�फाईल / Guard file. 6. स�ािपत�ित True Copy By Order Senior Private Secretary, Head of Office/D.D.O, I.T.A.T, Kolkata Benches, Kolkata.