Case Law Details
Jagdish Chandra Suwalka Vs JCIT (ITAT Jaipur)
ITAT observed that the provisions contained u/s 275(1)(a)are not applicable on the facts of present case for the reason that undisputedly no appeal has been filed against the assessment order passed on 28.12.2017. Therefore, it cannot be said that the relevant assessment or other order was subjected to some appellate proceeding. Consequently, the extended period of limitation of 6 months from the availability of the appellate order, will not be available to the revenue. But otherwise also, the computation of the income has no bearing over the imposition or otherwise of the penalty provided u/s 271D and 271E of the Act.
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 contravention of Sec.269SS of the IT Act. Thus, the relevant proceedings were the assessment proceedings during the course of which, the default of accepting cash over the prescribed limit was noted by the AO and since the assessment proceedings were completed on 28.12.2017, the related financial year ended on 31.03.2018. Accordingly, the first time limit thus expired on 31.03.2018. For the second time limit, an action for imposition of penalty was taken on 28.12.2017 by the AO, when the assessment was completed and six months from end of that month expired on 30.06.2018 which time limit clearly expires later. Hence, the penalty u/s 271D could have been validly imposed only on before 30.06.2018 as against which, in this case, the impugned penalty was imposed much later on 28.05.2019 hence, the same is clearly barred by limitation. The ld. D/R however, contended that for this period of 6 months has to be reckoned from the date of issue of show cause notice by the ld. JCIT, who was the competent Authority to impose a penalty u/s 271D and since he issued the notice on dated 06.11.2018 and imposed the penalty on 28.05.2019 itself, which was well within the period of 6 month from the month in which action for imposition of penalty was taken. The ld. A/R however, strongly contended that for this purpose the observation made by the AO in the assessment order has to be considered and the date of the assessment order being 28.12.2017 was relevant and therefore, the period of 6 months has to be reckoned from that date. Consequently, the limitation from that date the limitation had already expired.
ITAT find that the issue involved in the present case is fully covered by the decision of Hon’ble Jurisdictional High Court in the case of CIT vs. Hissaria Bros. (Supra).The same has been affirmed by the Hon’ble Apex Court in the case of CIT Vs. Hissaria Brothers [2016] 386 ITR 719 (SC), holding as under.
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