AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 360
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....CIT (A) erred in law as well as on the facts of the case in passing the impugned order in a haste without affording adequate and reasonable opportunity of being heard. The impugned order having been framed in gross breach of natural justice, hence the same kindly be quashed or alternatively be restored to the file of the ld. CIT (A). 4. The appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing. 2. The brief facts of the case are that the assessee filed his return declaring income of Rs.3,12,060/- and agriculture income of Rs. 75,200/- on 29.10.2015 through E-filing which was processed u/s 143(1) at the returned income. The case of the assessee was selected for limited scrutiny through CASS and hence notice u/s 143(2) and 142 were issued on different dates. In response Sh. Ravi Kumar Jain and Sh. Mukesh Kumar Jain, Advocates & A/R attended and furnished details as required from time to time. Various aspects of the case were discussed with them. During the relevant period the assessee was engaged in trading of Tudi i.e. wastage of Sarson plant which is used as a fuel by the bio-bricks manufac....
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....'ble Supreme Court in the case of National Thermal Power corporation Ltd., 229 ITR 383 (SC) prayed admission of the same : Additional Ground : "That the impugned penalty order dated 28.05.2019 passed by the ld. JCIT Range-7 Jaipur is clearly barred by limitation u/s 275(1)(c) of the Act and therefore the same deserves to be quashed." 4. After hearing both the parties, I am convinced that this is purely a legal ground objecting to the imposition of the penalty as barred by limitation. Since the facts relating to this ground are available on the record, requiring no fresh investigation of facts hence, relying upon the judgment of Hon'ble Supreme Court in the case of National Thermal Power Corporation Ltd. 229 ITR 383 (SC), the additional ground is hereby admitted. 5. Before me, the ld. A/R of the assessee submitted his submissions as under :- "At the outset, it is submitted that based on the undisputed facts available on record, imposition of penalty vide the impugned order u/s 271D passed by the ld. JCIT, Jaipur on 28.05.2019, is clearly barred by the limitation in as much as, the law u/s 275(1)(c) reads as under: 275. (1) No order imposing ....
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....how cause by the Jt. CIT, but the period of limitation was to be reckoned from the date of issue of first show cause for initiation of such penalty proceedings". 1.2.2.CIT Vs. Hissaria Brothers [2016] 386 ITR 719 (SC)(DPB 5-6): "Penalty under ss. 271D and 271E-Limitation under s. 275- Computation-Penalty orders under ss. 271D and 271E passed beyond six months from the end of the month in which the assessments were completed were barred by limitation- CIT vs. Hissaria Bros. (2007) 211 CTR (Raj) 156 affirmed." 1.3 Application over the Facts of Present case: No penalty u/s 271D could be imposed after the expiry of limitation prescribed being the later of (a) expiry of the related financial year or (b) within a period of 6 months from the end of the month in which action for imposition of penalty was taken by the Assessing Officer. The ld. JCIT in the impugned penalty order has observed that the assessment (part of appeal set) for AY 2015-16 was completed by the ACIT, Tonk u/s 147/143(3) of the Act on 28.12.2017 (wrongly typed as 27.12.2017) stating as under: "The AO observed that the assessee had received cash payment of Rs.47,50,000/- from....
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.... separately. GOA 3: No adequate opportunity 3.1 The ld. CIT(A) erred in law as well as on the facts of the case in passing the impugned order in a haste on dated 30.08.2022 without affording adequate and reasonable opportunity of being heard. The impugned order having been framed in gross breach of natural justice, kindly be quashed or alternatively be restored to the file of the ld. CIT(A), as would appear from the following date chart: Chart Showing Different notices and compliances: S.No. Date of Issue of Notice Last Date As per CIT (A) notice served upon/on Compliance Made by assessee Remarks 1. 23.01.2021 29.01.2021 Income Tax Portal Adjournment Sought Compliance duly made 2. 13.10.2021 20.10.2021 Income Tax Portal No Compliance made 3. 30.07.2022 12.08.2022 Income Tax Portal No Compliance made A bare perusal of the above chart shows that the so-called many opportunities granted by the CIT(A) to the appellant, is illusionary and shall reveal an interesting fact that the first notice was given in January 2021 which was duly complied with. However, there was a long....
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....is no hesitation to say that the ld.CIT(A) just to show a disposal on his part, passed the impugned order in complete disregard to principles of natural justice i.e., Audi alterampartem. Hence, to do substantial justice, the appeal kindly be decided in favour of the assessee or alternatively restored to the file of the ld. CIT(A). 3.2 CIT(A) did not act as per Law: The CIT(A) has not decided the appeal on merits which is contradictory to the mandate of Section 250(6). The same is reproduced here under for your ready reference: "(6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision." A bare perusal of above provision makes it clear that the CIT(A) is bound to dispose of the appeal before him on merits. Merely because the assessee didn't turn up, he cannot dismiss the appeal in Limine. The law contained u/s 250(6) & 251 do not at all contemplates the CIT(A) passing an appellate order in this manner. There are judicial guidelines to support this contention. 3.3 Supporting Case Laws: 3.3.1 Cor....
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....appeal in limine for non-prosecution of appeal by the assessee. We draw support from order of Hon'ble Bombay High Court in the case of CIT vs. PremkumarArjundasLuthra (HUF) [2016] 240 taxman 133 for the proposition that Ld. CIT(A) is required to apply her mind to all issues which arise from impugned order before her whether or not same had been raised by appellant before her; and further, that CIT(A) is obliged to dispose of the appeal on merits. X XX In view of the foregoing, we hold that the Ld. CIT(A) erred in dismissing the appeal of the Assessee in limine for non prosecution of appeal by assessee. We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 of I.T. Act." 3.3.2 CIT vs. PremkumarArjundasLuthra (HUF) [2016] 240 taxman 133 it was held that: "8............It is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Ac....
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....assed by the ld. CIT(A) are not in terms of Section 250(6) of the Act. Therefore, in the substantial interest of justice, we set aside the ex parte order of the ld. CIT(A) and restore the matter back to the file of the ld. CIT(A) for deciding the issue afresh on merits. The assessee is also directed to appear before the ld. CIT(A) within two months from the date of receipt of this order. In case of any failure on the part of the assessee, the ld. CIT(A) is at liberty to pass order after considering the material placed on record." Thus, not only in the ground of the inadequate opportunity but also on the ground of limitation, the impugned penalty order deserves to be quashed or alternatively the order of the CIT(A) be set aside and appeal may kindly be restored to the CIT(A)." In addition to the above submissions made by the assessee, the ld. A/R further submitted as under :- 1. Additional Ground: Impugned Penalty Barred by Limitation: In addition, and continuation to our earlier Written Submission dt. 04.01.2023 available on records, it is further submitted/ clarified as to why the provisions of S. 275(1)(a) are not applicable in the present case. In this conne....
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.... was held as under: "Penalty under ss. 271D and 271E-Limitation under s. 275- Applicability of cl. (a) or cl. (c) of s. 275(1)-Provisions of s. 275(1)(c) only are attracted to levy of penalty under ss. 271D and 271E, and the provisions of cl. (a) of s. 275(1) are not applicable-Further, the limitation period is to be counted from the date of the assessment order i.e., AO's decision to make referral to the Addl. CIT who is authorized to impose penalty-In view of the fact that the assessee's assessment order in the instant case is dated 5th Dec., 2011, 6 months from the end of the month in which the action of levy of penalty was initiated as per the provisions of cl. (c) of s. 275(i) expired on 30th June, 2012, and the extended limitation under Explanation to s. 275 r/w s. 129 expired on 30th July, 2012-Therefore, the penalty order passed by the Addl. CIT on 28th Sept., 2012 is barred by limitation." 1.3 The decision by DR- not applicable: What has been held in the case of Dewan Chand Amrit Lal vs DCIT (2005) 98 TTJ (Chd)(SB) 947taking a contrary view doesn't hold water in view of binding decision of Hon'ble Judiciary High Court in Jitendra Singh (supra). Therefore,....
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....ew of the above facts, the present matter is out of scope of section 269SS read with section 271D of Income Tax Act, 1961. 2. This contention is directly supported by the following decisions: 2.1 Sunil Kumar Chirawa vs Addl. Commissioner of Income Tax, Jhunjhunu ITA No. 203 & 204/JP/2018 vide order dated 09.01.2019 (DPB 11-19) wherein it was held that "the explanation of the assessee that the said amount was deposited by the said person in the bank account of the assessee for the purpose of taking a D.D in favour of the excise department for participating in the tender of liquor shops was accepted by the assessing officer then it will not fall in the ambit of loan or deposit as contemplated in the provisions of section 269SS and 269T of the act and in absence of any fresh material or contrary record to show that the amount was taken as a loan by the assessee for the assessee's requirement, the penalty levied u/s 271D or section 271E are not justified." 2.2 Commissioner of Income-tax v. Panchsheel Owners Associations [2015] 55 taxmann.com 202 (Guj)(DPB20-22) wherein the court said, "it cannot be held that capital contribution by a member of an AOP in the a....
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....26 (SC). 3.Further w.r.t GOA 3: No adequate opportunity, kindly refer the following chart in place of the chart shown in our earlier written submission at pages 5 & 6. Chart Showing Different notices and compliances: S.No. Date of Issue of Notice Last Date As per CIT (A) notice served upon/on Compliance Made by assessee Remarks 1. 23.01.2021 29.01.2021 Income Tax Portal Adjournment Sought Compliance duly made 2. 13.10.2021 20.10.2021 Income Tax Portal Adjournment Sought on 21.10.2021(copy enclosed) Compliance made 3. 30.07.2022 12.08.2022 Income Tax Portal No Notice served hence Compliance not possible It is further submitted thus, on two occasions compliance was made however, for last occasion no notice was received by Shri Mukesh Jain advocate as evident from screen shots of his Gmail from 28.07.2022 to 01.08.2022 (copy enclosed). Hence, the impugned penalty may be quashed in toto or alternatively be restored to the CIT(A)." 6. On the other hand, the ld. D/R supported the orders of the revenue authorities. The ld. D/R relied on the decision of Chandigarh Bench of the Tr....
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....Appeals) passes the order on or after the 1st day of June, 2003 disposing of such appeal, 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; (b) in a case where the relevant assessment or other order is the subject-matter of revision under section 263 or section 264, after the expiry of six months from the end of the month in which such order of revision is passed; (c) in any other case, 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 action for imposition of penalty is initiated, whichever period expires later......xxx" At the very beginning it is observed that the provisions contained u/s 275(1)(a)are not applicable on the f....
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....ection 269SS or section 269T, and on the ground that limitation under section 275(1)(c) applies to such proceedings, we hold in favour of the respondent...." For the same reason section 275 (1)(b) is also not applicable in as much as the assessment order was not subjected to Revision u/s 263 or u/s 264. Now coming to section 275(1)(c), we find that two types of limitations are provided therein viz, (1) 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 (2) six months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later. Thus, a penalty u/s 271D could not be imposed after the expiry of the larger period of limitation. In this case, we find that the ld. JCIT in the impugned penalty order has clearly observed that the assessment for A.Y 2015-16 was completed by the AO (ACIT Tonk) vide assessment order dated 28.12.2017 u/s 147/143(3) of the Act. The ld. JCIT also referred to the observation made by the AO that the assessee had received cash payment of Rs.47,50,000/- from various persons as per details given, which are in ....