TaxTMI 
TaxTMI 
2019 (8) TMI 853
X X X X Extracts X X X X
X X X X Extracts X X X X
....FA(2) / ACIT/NCC-20(1) / CHN made by sole respondent (hereinafter 'impugned order' for brevity) is barred by limitation. Notwithstanding several averments made, grounds / contentions raised in the affidavit filed in support of the writ petition and the counter affidavit filed by the lone official respondent, both learned counsel before this court agreed without any disagreement or disputation that the entire writ petition now turns on limitation issue and arguments were advanced on this basis. 3 In the light of the narrow compass on which instant writ petition now turns, short facts shorn of micro details will suffice and the same is given infra under the caption 'Factual Matrix in a Nutshell'. 4 Factual Matrix in a Nutshell : (a) Subject matter of instant writ petition arises under the 'Income Tax Act, 1961' ('IT Act' for brevity). (b) Genesis of this writ petition was on 17.07.2002 when a search by the Income Tax Officials commenced in the office and residential premises of the writ petitioner. This search lasted till 21.8.2002. (c) In the course of search, evidences were collected and according to Income Tax Department, there was understat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iginal authority on 31.8.2004, it was made clear that penalty proceedings under Section 158BFA(2) of IT Act will be initiated separately qua undisclosed income for the said block period. While this was mentioned in the assessment order itself, a separate 'Show Cause Notice' ('SCN' for brevity) was also issued on the same day, i.e., 31.8.2004 calling upon assessee to appear in person on date and time specified therein to show cause as to why penalty under section 158BFA(2) of IT Act should not be imposed. (h) This SCN also did not progress owing to assessment order going through four levels of appellate adjudication, i.e., before appellate authority, ITAT, Hon'ble Division Bench of this Court and Hon'ble Supreme Court of India, the details and trajectory of which have been set out supra. (i) Therefore, after the order of Hon'ble Supreme Court of India on 2.5.2018, when the original assessment order made by the original authority on 31.8.2004 stood resuscitated, respondent issued a notice dated 12.9.2018 calling upon the writ petitioner Assessee to appear on a specified date and time (17.9.2018, 3.30 p.m.) to show cause as to why penalty should not be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evenue had carried it to Hon'ble Supreme Court successfully. (c) One important and significant aspect of the matter is both sides submitted without any disputation that all appeals, i.e., first appeal by writ petitioner Assessee, two appeals by writ petitioner assessee and Revenue to ITAT, Tax Case Appeal to this court by Revenue and S.L.P in Hon'ble Supreme Court were all filed within the prescribed time limits. (d) Adverting to the aforesaid provisions of law, learned counsel for writ petitioner contended that the statute (to be precise, section 158BFA(3)(c)) very clearly mentions about the order of first appellate authority, namely Commissioner of Appeals-I in this case and ITAT, but does not talk about TCA in this court or further proceedings in Hon'ble Supreme Court. (e) In an attempt to buttress this submission, learned counsel for writ petitioner placed reliance on section 275 of IT Act, as also The Taxation Laws (Amendment) Bill, 2005 being Bill No.74 of 2005. (f) With regard to Section 275 of IT Act, it was submitted that penalty under section 271(1)(c) of IT Act has a time limit, which is different from that of penalty under section 158BFA(2) of IT Act....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the date on which penalty proceedings are initiated. In the instant case, if it is construed that penalty proceedings were initiated on 31.8.2004, as already alluded to supra, the same could not be continued owing to writ petitioner assessee's appeal before first appellate authority. To be noted, first appellate authority confirmed the tax levy, but reduced the interest component, resulting in both assessee and Revenue carrying the matter in appeal to ITAT. Obviously, Revenue had to wait for the outcome of appeals before ITAT. As already mentioned supra, the outcome of appeals before ITAT was in favour of writ petitioner assessee. Absent assessment order, the question of penalty proceedings does not arise and therefore, penalty proceedings initiated on 31.8.2004 continued to lie dormant. This court also dismissed the TCA and assessment order got resuscitated / revived only when Hon'ble Supreme Court allowed the Civil Appeal on 2.5.2018 and therefore, further notice dated 12.9.2018 continuing penalty proceedings which was involuntarily lying dormant was issued. This 12.9.2018 notice is well within six months from the date of the order of Hon'ble Supreme Court and ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e matter. Section 260A appeal to this court is on substantial question/s of law only and therefore ITAT is in any case the last forum on facts. (n) One more way of looking at the matter, albeit on a demurrer premise is, even if 12.9.2018 notice is not construed as continuation of 31.8.2004 SCN, impugned order will not be hit by limitation as section 158BFA(3)(e) does not talk about penalty proceedings 'already initiated' in past tense, but it talks about penalty proceedings in praesenti. To be noted, the term used is 'is' and not 'was'. (o) Be that as it may, though an attempt made by learned counsel for writ petitioner by placing reliance on Bill No.74 of 2005 comes across as an attractive argument, it is not an argument which can be accepted for reading into a provision of law. The question of debate and deliberation qua the Bill and looking into the same may arise only when there is ambiguity, but in the instant case, as this court comes to the conclusion that the provision is unambiguous and not even ambivalent, this argument does not carry the case of writ petitioner any further. (p) The last point which requires to be considered is the doctrine o....