DIPAK N. CHOKSHI Vs. DEPUTY COMMISSIONER OF INCOME TAX
INCOME TAX APPELLATE TRIBUNAL
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(1.) THIS is the assessee's appeal against the order of Ld. CIT(A) -IV Baroda dated 04 -01 -2011.
(2.) THE assessee has taken following grounds of appeal: -
"1. The Ld. Commissioner of Income Tax (Appeals) has erred in law and in fact in not quashing the order of the Ld. AO as being time barred as per the provisions u/s 158BFA(3)(c) of the Act. It is, therefore, prayed that the said order may please be quashed as having been time -barred in law.
2. The Ld. Commissioner of Income Tax (Appeals) has erred in law and in fact in confirming the action of the ld. AO in levying penalty u/s. 158BFA(2) of the Act of Rs. 58,000/ - in complete disregard of law and the facts and, thus, such penalty is prayed to be cancelled."
(3.) IN the first ground assessee has challenged order passed by the AO on the ground of its being time barred by limitation u/s. 158BFA(2). Ld. CIT(A) has dismissed this ground of the assessee taken before
him by observing as under: -
"2.2. I have considered the matter. As recorded in the penalty order, notice u/s.158BFA(2) was issued and served on the appellant on 24.2,2005. Appellant requested the Assessing Officer to keep the penalty proceedings in abeyance till disposal of appeal by CIT(Appeals). On receipt of CIT(A)'s order dated 16.8.2005 dismissing assessee's appeal, Assessing Officer again afforded opportunity to the appellant to explain as to why penalty be not levied. Appellant requested the Assessing Officer to keep penalty proceedings u/s. 158 BFA(2) in abeyance till disposal of appeal by ITAT. Accordingly, on appellant's request, penalty proceedings were kept in abeyance. Appellant did not inform the Assessing Officer about disposal of appeals by ITAT. As mentioned in para 6(vi) of the penalty order, since ITAT's order was not received by the CIT, Dy, Registrar, ITAT was requested to send certified copy of ITAT's order, which was then received on 20.7.2009 by C.I.T. -II, Baroda. Penalty order was passed within six months of the date of receipt of order by CIT -II, Baroda. Letter dated 22.7.2010 by Asstt. Registrar, ITAT, Ahmedabad providing information to the appellant under RTI Act in response to appellant's application dated 25.6.2010, copy of which is filed by the appellant clearly states that postal record/receipt/ acknowledgement of order claimed to be issued on 4.4.2006 is not available with ITAT. In view of this, AO's stand that ITAT's order was received for the first time on 20.7.2009 by the CIT concerned stands corroborated. The date of receipt of ITAT's order by the CIT concerned being 20.7.2009, it is held that penalty order u/s.158 BFA(2) dated 8.12.2009 was passed within the prescribed statutory time limit. Ground No.1 of appeal is dismissed."
Since the categorical finding of Ld. CIT(A) that ITAT's order was received for the first time on 20 -07 -2009 by the CIT concerned has not been controverted by the assessee by placing any material on record to the contrary, we are of the considered opinion that Ld. CIT(A) was justified in holding that the penalty order u/s. 158BFA(2) dated 18 -12 -2009 was passed within the prescribed statutory time limit. Therefore, this ground of the assessee is dismissed.
Second ground relates to levying of penalty u/s. 158BFA(2) of Rs. 58,000/ -.;
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