Pendency of Rectification application – Immunity from prosecution & penalty – HC grants interim relief

Kusharaj Madhav Bhandary Vs ITO (Bombay High Court)

It is the case of the Petitioner that the Order of the assessment was passed on 30 March 2022, in which a demand was raised against the Petitioner. The said Order of assessment was not challenged by the Petitioner. With a view to seek benefit of immunity from prosecution & penalty under Section 270AA of the Income Tax Act, 1961 (“the Act”), the Petitioner is otherwise required to fulfill the condition that the appeal was preferred against the Order of assessment and tax and interest has been paid as per the Order of assessment. In accordance with the provision of Section 270AA of the Act, it is stated that the application has to be made within one month from the end of the month of receipt of the Order of assessment. In this case, it expired on 30 April 2022.

2. Learned Counsel for the Petitioner states that the Petitioner filed an application on 27 April 2022 seeking rectification of the Order of the assessment in terms of Section 154 of the Act inasmuch as the assessing officer had failed to give credit of Rs.25,00,000/- to the Petitioner, which is deposited by way of TDS. It is stated that in the meantime, the Order of penalty has been passed on 27 September 2022. It is stated that had the application for rectification filed by the Petitioner been disposed of within time, it would have enabled the Petitioner to avail benefit of immunity from prosecution & penalty in terms of the Section mentioned here in above.

3. Issue notice. Service waived by Ms. Sushma Nagaraj, learned Counsel for the Respondents. Objections be filed within six weeks.

4. In the meantime, it is ordered that further proceedings shall not be initiated pursuant to issuance of the Order of penalty dated 27 September 2022. The Respondents are directed to pass an appropriate Order on the application of the Petitioner for rectification dated 11 April 2022 filed on 27 September 2022.

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