|Question And Answer
|M.A. by Department on issue of Limitation.
|Appellate Tribunal, Rectification of mistake
|November 11, 2022
- Certain Addition were made to the Return of Income On account of Investment in House Property and Difference in stock found During Survey operation in Assesment completed u/s 143(3) For AY 2006-07.
- In Quantum Appeal Before CIT(A) the Additions Were Confirmed.
- ITAT vide Order Dated 08/07/2016 Confirmed the order of CIT(A).
- The Said order of ITAT as per certificate issued by Registrar was sent to Principal Commissioner on 09/09/2016
- Penalty Notice u/s 271(1)(C) was Issued for Concealment and furnishing inaccurate particulars of income.(in the printed form non applicable portion was not struck off)
- Penalty u/s 271(1)(c)was lavied by A.O. by order Dated 26/04/2017 of Rs.5,00,000/-
- Against the penalty order appeal was filed before CIT(A) and the only Ground taken was Regarding the limitations(Since the order was passed after 6 months As per Sec 275(1)(a)
- The CIT(A) deleted the penalty on the Ground of Limitation.
- Revenue Filed Second Appeal Before ITAT on the ground that
- The order of the Tribunal was Received on 07/10/2016 in the office of PCIT(that is after 29 days from the date of dispatch by the office of ITAT)
- The case is covered under exceptions as per para 10A of circular no 03/2018 dated 17/07/18 of CBDT regarding low Tax effect.
- No cross objections were filed by the assessee.
- During the course of Hearing before ITAT detailed paper book was filed by the Assesse raising the Following Legal issues:-
- Applicability of Sec 275(1)(a) Since more than 6 month Expired from the date of issue of ITAT order.
- Not Applicability of para 10A of CBDT circular 03/2018 dated 17/07/18.
- Non striking of non relevant portion in printed penalty notice.
- Admission of appeal in Quantum case by High Court and framing of Substantial Question of Law(Although after framing of question of law appeal from high court was withdrawn for availing Viwad se Viwad Scheme.
- During the Course of hearing before ITAT Department has not produced any documentary evidence in support of their contention as regards limitations issue.
- ITAT Dismissed the appeal stating the same to be devoid of any merit(after mentioning the facts of the case and order of the CIT(A).
- No detailed order was passed by the ITAT.
- Now the department has filed M.A. stating that
- ITAT dismissed the appeal of the revenue in limine.
- Without appreciating that the period of limitation for passing penalty order starts from the date of receipt of the appellate order of the Hon’ble ITAT in the O/o jurisdictional Pr. CIT.
- No other issue has been raised by the department.
- How for the M.A. of the department is maintainable?
- What submissions should be made by the assessee before ITAT apart from certificate from ITAT Regarding the date of sending of order on 09/09/2016 to PCIT and Copy of Submissions made earlier as stated above?
Kindly give detailed Reply with Citations.
The assessee may refer the judgement the Judgement of Apex Court in CIT v. Reliance Industries Ltd ( 2022 ) 440 ITR 1(SC) where in the Honourable Supreme Court held that the ITAT has no power of review . assuming the Tribunal decides merits erroneously remedy of aggrieved party is to appeal before High Court . On the facts of the case the ITAT has up held the order of the CIT(A ) though no separate reasoning is given , it is presumed that the ITAT has affirmed the reasoned order of CIT ( A). The miscellaneous application of the Revenue may be dismissed by the ITAT .