ITO 9(1)(1), MUMBAI v. ALPHA GENERAL LEASING & FINANCE P. LTD, MUMBAI

ITA 2630/MUM/2009 | 1993-1994
Pronouncement Date: 16-11-2011 | Result: Dismissed

Appeal Details

RSA Number 263019914 RSA 2009
Assessee PAN AAACA3338A
Bench Mumbai
Appeal Number ITA 2630/MUM/2009
Duration Of Justice 2 year(s) 6 month(s) 22 day(s)
Appellant ITO 9(1)(1), MUMBAI
Respondent ALPHA GENERAL LEASING & FINANCE P. LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 16-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 16-11-2011
Assessment Year 1993-1994
Appeal Filed On 24-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A : MUMBAI BEFORE SHRI D.K. AGARWAL ( JUDICIAL MEMBER) AND SHRI RAJENDRA SINGH (ACCOUNTANT MEMBER) ITA NO.2630/MUM/2009 ASSESSMENT YEAR : 1993-94 INCOME TAX OFFICER WARD 9(1)(1) ROOM NO.226 AAYAKAR BHAVAN MUMBAI-400 020. ..( APPELLANT ) VS. M/S. ALPHA GENERAL LEASING & FINANCE PVT. LTD. 11 PALM CREST 191/192 ST. PAUL ROAD BANDRA (W) MUMBAI-400 050. ..( RESPONDENT ) P.A. NO. (AAACA 3338 A) C.O. NO.200/MUM/2009 ARISING OUT OF ITA NO.2630/MUM/2009 ASSESSMENT YEAR : 1993-94 M/S. ALPHA GENERAL LEASING & FINANCE PVT. LTD. MUMBAI-400 050. ..(CROSS OBJECTOR) VS. INCOME TAX OFFICER WARD 9(1)(1) MUMBAI-400 020. ..( APPELLANT IN APPEAL ) REVENUE BY : SHRI PAR THASARATHI NAIK ASSESSEE BY : NONE DATE OF HEARING : 1.11.2011 DATE OF PRONOUNCEMENT : 16 TH NOVEMBER 2011 ITA NO.2630/M/09 & CO:NO.200/09 A.Y:93-94 & 03-04 2 O R D E R PER RAJENDRA SINGH (AM). THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTIONS OF TH E ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 4.2.2009 OF CIT(A) FOR THE ASSESSMENT YEAR 1993-94. THE ONLY DISPUTE RAISED IN THESE APPEALS IS REGARDING LEVY OF PENALTY UNDER SECTION 271( 1)(C) OF THE INCOME TAX ACT. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSE E FOR THE ASSESSMENT YEAR 1993-94 HAD DECLARED TOTAL INCOME OF RS.6 31 190/- IN THE RETURN FILED ON 29.12.1993. IN THE ORIGINAL ASSESSMENT MADE BY AO UNDER SECTION 143(3) THE FOLLOWING ADDITIONS HAD BE EN MADE : RS.8 89 424/- ON ACCOUNT OF COMMISSION; RS.5 82 500/- ON A CCOUNT OF SERVICE; AND RS.2 04 950 ON ACCOUNT OF REPAIRS. THE ASSESSEE DISPUTED THE ADDITIONS AND THE TRIBUNAL VIDE ORDER DA TED 8.5.2003 IN ITA NO.711/MUM/1996 CONFIRMED THE ADDITION ON ACCOUNT OF COMMISSION AND SERVICE BUT SET ASIDE THE ADDITION ON ACCOUNT OF REPAIR AND RESTORED THE MATTER TO THE FILE OF AO. IN THE F RESH ASSESSMENT ORDER UNDER SECTION 143(3) DATED 23.2.1996 THE AO AG AIN ADDED THE SUM OF RS.2 04 950/- ON ACCOUNT OF REPAIR AND ALSO INITI ATED PENALTY PROCEEDINGS. HE LEVIED PENALTY IN RESPECT OF THE THREE A DDITIONS @ 100% OF TAX SOUGHT TO BE EVADED AMOUNTING TO RS.9 64 203/- IN THE ITA NO.2630/M/09 & CO:NO.200/09 A.Y:93-94 & 03-04 3 PENALTY ORDER DATED 29.11.2005. SUBSEQUENTLY THE AD DITION ON ACCOUNT OF REPAIR WAS DELETED BY THE IN THE APPEAL AG AINST FRESH ASSESSMENTS AND THUS ONLY ADDITIONS ON ACCOUNT OF COMMISSION AN D SERVICES WERE UPHELD. 2.1 THE ASSESSEE HAD ALSO FILED MISCELLANEOUS APPLICATION AG AINST THE ORDER DATED 8.5.2003 OF THE TRIBUNAL AND THIS MISCELL ANEOUS APPLICATION WAS DECIDED BY THE TRIBUNAL ON 1.3.2005 AND THE ORDER IN THE MISCELLANEOUS APPLICATION WAS RECEIVED BY CIT ON 5.5.2003 . UNDER THE PROVISIONS OF SECTION 275 PENALTY ORDER HAD TO BE PASSED BY THE END OF FINANCIAL YEAR IN WHICH THE PROCEEDINGS DURING WHICH THE PENALTY HAD BEEN INSTITUTED ARE COMPLETED OR WITHIN SIX MONTHS FRO M THE DATE OF RECEIPT OF THE ORDER OF THE TRIBUNAL BY THE COMMISSION ER/CHIEF COMMISSIONER. THE CASE OF THE DEPARTMENT IS THAT THE PE RIOD OF SIX MONTHS HAD TO BE COUNTED FROM THE DATE OF ORDER OF TR IBUNAL IN THE MISCELLANEOUS APPLICATION UNDER SECTION 254(2) CIT. HOWEVE R FOLLOWING THE DECISION OF TRIBUNAL IN CASE OF ACIT VS. DELHI INDUS TRIAL SYNDICATE (83 ITD 130) CIT(A) HAS HELD THAT SIX MONTHS PERIOD HA D TO BE COUNTED FROM THE DATE OF RECEIPT OF THE ORDER OF TRIB UNAL PASSED UNDER SECTION 254(1) OF THE INCOME TAX ACT. CIT(A) THEREFOR E HELD THAT THE PENALTY WAS BARRED BY LIMITATION. AGGRIEVED BY THE SA ID DECISION THE REVENUE IS IN APPEAL. ITA NO.2630/M/09 & CO:NO.200/09 A.Y:93-94 & 03-04 4 3. BEFORE US NO ONE APPEARED ON BEHALF OF THE ASSESSE E TO REPRESENT THE CASE THOUGH NOTICE OF HEARING HAD BEEN RECEIVED BY THE ASSESSEE. WE THEREFORE PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE L D. DR WHO STRONGLY SUPPORTED THE ORDER OF AO. IT WAS ARGUED BY THE LD. DR THAT THE TRIBUNAL HAD SET ASIDE THE ASSESSMENT IN RELATION TO THE ADDITION ON ACCOUNT OF REPAIR PURSUANT TO WHICH FRESH ASSESSMENT WAS MADE BY THE AO IN WHICH THE PENALTY WAS RE-INITIATED AND LEVIED IN RESPECT OF ALL THE THREE ADDITIONS. SUBSEQUENTLY CIT(A) VIDE ORDER DA TED 7.7.2004 CONFIRMED THE ADDITION ON ACCOUNT OF REPAIR ALSO. IT W AS ARGUED THAT LIMITATION ON LEVY OF PENALTY SHOULD APPLY FROM THE DATE OF ORDER OF CIT(A) IN THE SECOND ROUND OF APPEAL AND FOLLOWING TH AT THE PENALTY WAS NOT BARRED BY LIMITATION. THE LD. DR PLACED RELI ANCE ON THE JUDGMENT OF HONBLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF CIT VS. SMT. SANTOSH MAHEY (293 ITR 573). 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE RIVAL CONTENTIONS CAREFULLY. THE DISPUTE IS REGARDING LEVY OF PENALTY UNDER SECTION 271(1)(C) IN THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) THE FOLLOWING ADDITIONS WERE MADE RS.8 89 424/- ON ACCOUN T OF COMMISSION; RS.5 82 500/- ON ACCOUNT OF SERVICES; AND RS.2 04 950 ON ACCOUNT OF REPAIRS. THE TRIBUNAL VIDE ORDER DATED 8.5.2003 HAD ITA NO.2630/M/09 & CO:NO.200/09 A.Y:93-94 & 03-04 5 CONFIRMED THE ADDITION ON ACCOUNT OF COMMISSION AND SERVI CES AND RESTORED THE ADDITION ON ACCOUNT OF REPAIR TO THE FILE OF AO FOR FRESH DECISION. IN THE FRESH ASSESSMENT PROCEEDINGS THE AO AGAIN ADDED THE SUM OF RS.2 04 950/- WHICH WAS CONFIRMED BY CIT(A) BUT A S SUBMITTED BY LD. AUTHORISED REPRESENTATIVE THIS ADDITION ON ACCOU NT OF REPAIR HAS BEEN DELETED BY THE TRIBUNAL. THE ISSUE IS WHETHER PE NALTY LEVIED IN RESPECT OF ADDITION ON ACCOUNT OF COMMISSION AND SERVICES VID E ORDER DATED 29.11.2005 IS WITHIN TIME. UNDER THE PROVISION S OF SECTION 275 PENALTY ORDER HAS TO BE PASSED BY THE END OF FINANCIAL YEAR IN WHICH THE PROCEEDINGS DURING THE COURSE OF WHICH THE PENALTY H AD BEEN INITIATED ARE COMPLETED OR WITHIN SIX MONTHS FROM TH E DATE OF RECEIPT OF THE ORDER OF THE TRIBUNAL. IN THIS CASE THE ORDE R OF THE TRIBUNAL IN RELATION TO THE ADDITION ON ACCOUNT OF COMMISSION AND SER VICES HAS BEEN PASSED ON 8.5.2003. AGAINST THE ORDER OF TRIBUNA L MISCELLANEOUS APPLICATION HAD BEEN FILED WHICH WAS ALSO DISPOSED OF B Y THE TRIBUNAL VIDE ORDER DATED 1.3.2005 WHICH WAS RECEIVED IN THE OF FICE OF CIT ON 5.5.2005. THE AO COUNTED THE LIMITATION PERIOD OF SI X MONTHS FROM THE DATE OF RECEIPT OF ORDER OF THE TRIBUNAL IN THE MISCELLANEOUS APPLICATION WHICH HAD BEEN REJECTED BY THE CIT(A). TH E CIT(A) REJECTED THE CLAIM OF THE AO ON THE BASIS OF DECISION OF THE TRIBUNAL IN CASE OF ACIT VS. DELHI INDUSTRIAL SYNDICATE (83 ITD 13 0) (SUPRA) IN WHICH IT HAS BEEN HELD THAT THE PERIOD OF LIMITATION HAD TO BE RECKONED ITA NO.2630/M/09 & CO:NO.200/09 A.Y:93-94 & 03-04 6 FROM THE DATE OF RECEIPT OF ORDER OF THE TRIBUNAL UN DER SECTION 254(1) AND NOT FROM THE DATE OF RECEIPT OF ANY ORDER IN TH E MISCELLANEOUS APPLICATION UNDER SECTION 254(2). THERE IS NO CONTRARY DECISION OF HIGH COURT OR APEX COURT BROUGHT TO OUR NOTICE BY THE LD. DR. THEREFORE THE PLEA BASED ON ORDER IN THE MISCELLANEOU S APPLICATION HAS BEEN RIGHTLY REJECTED BY CIT(A). 4.1 THE PLEA OF THE LD. DR THAT LIMITATION PERIOD SH OULD BE COUNTED FROM THE DATE OF THE APPELLATE ORDER IN THE SECOND R OUND OF THE APPEAL IN OUR VIEW CANNOT BE ACCEPTED BECAUSE IN THE F RESH ASSESSMENT ORDER THERE WAS ONLY ADDITION ON ACCOUNT OF REP AIR WHICH HAD BEEN DELETED. THE ADDITION ON THE ACCOUNT OF COMMI SSION AND SERVICES WHICH HAD BEEN UPHELD BY THE TRIBUNAL HAD BEEN MADE IN THE ORIGINAL ASSESSMENT PROCEEDINGS DURING THE COURSE OF WHICH ALSO PENALTY UNDER SECTION 271(1)(C) HAD BEEN INITIATED. TH EREFORE THE LIMITATION PERIOD IN RESPECT OF ANY PENALTY ORDER IN RELATION TO THE ADDITION ON ACCOUNT OF COMMISSION AND SERVICES HAD TO BE RE CKONED FROM THE DATE OF RECEIPT OF ORDER OF THE TRIBUNAL AG AINST THE ORIGINAL ASSESSMENT. IN THE FRESH ASSESSMENT PROCEEDINGS THE ONLY ISSUE WAS ADDITION ON ACCOUNT OF REPAIR AND THEREFORE DURING T HE FRESH ASSESSMENT PROCEEDINGS PENALTY ONLY IN RESPECT OF ADDITIO N ON ACCOUNT OF REPAIR COULD BE INITIATED AND NOT OTHER ADDITIONS WHICH HAD BEEN ITA NO.2630/M/09 & CO:NO.200/09 A.Y:93-94 & 03-04 7 MADE IN THE ORIGINAL ASSESSMENT AND HAD BECOME FINAL. T HERE IS NO DISPUTE RAISED BY THE REVENUE THAT IN CASE LIMITATION P ERIOD IS COUNTED FROM THE DATE OF RECEIPT OF ORDER OF TRIBUNAL AGAINS T THE ORIGINAL ASSESSMENT THE PENALTY IS BARRED BY LIMITATION. THE JUD GMENT OF HONBLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF C IT VS. SMT. SANTOSH MAHEY (293 ITR 573) (SUPRA) RELIED UPON BY TH E LD. DR IS DISTINGUISHABLE AS IN THAT CASE THE ORIGINAL ASSESSMENT HAD BEEN FULLY SET ASIDE AND PENALTY HAD BEEN INITIATED IN THE FRESH ASSESSMENT PROCEEDINGS AND THEREFORE THE LIMITATION PERIOD HAD B EEN COUNTED WITH RESPECT TO THE FRESH PROCEEDINGS. THE CASE IS OBVIOUSLY DISTINGUISHABLE. WE SEE NO INFIRMITY IN THE ORDER OF CIT(A) CANCELING THE PENALTY AND SAME IS THEREFORE UP HELD. 4. C.O. NO.200/MUM/2009:- 4.1 THE CROSS OBJECTION HAS BEEN FILED BY THE ASSESSEE ONLY TO SUPPORT THE ORDER OF CIT(A). SINCE WE HAVE ALREADY U PHELD THE ORDER OF CIT(A) AND DISMISSED THE APPEAL OF THE REVENUE THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND THE SAME I S DISMISSED AS HAVING BECOME INFRUCTUOUS. ITA NO.2630/M/09 & CO:NO.200/09 A.Y:93-94 & 03-04 8 5. IN THE RESULT APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.11.2011. SD/- SD/- (D.K. AGARWAL) (RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 16.11.2011. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.