ITA 1443/2018

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$~25

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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ITA 1443/2018

PR. COMMISSIONER OF INCOME TAX-4

..... Appellant

Through

Mr. Zoheb Hossain, Sr. Standing

counsel

versus

INDIAN SUGAR EXIM CORPORATION LTD. ..... Respondent

Through

Dr. Rakesh Gupta, Mr.Rohit Kumar

Gupta & Ms. Monika Ghai,

Advocates

CORAM:

JUSTICE S. MURALIDHAR

JUSTICE TALWANT SINGH

O R D E R

%

22.07.2019

Dr. S. Muralidhar, J.:

1. This is an appeal by the Revenue against the order dated 16^th April, 2018

passed by the Income Tax Appellate Tribunal (ITAT) in ITA No.

3860/Del/2017 & SA No. 85/Del/2018 for the Assessment Year (AY) 2009-

2010 whereby the ITAT deleted the penalty imposed on the Respondent

Assessee under Section 271(1)(c) of the Income Tax Act, 1961 („Act‟) on

the basis that it was done after the expiry of the limitation period under

Section 275(1)(a) of the Act.

2. The facts in brief are that the Assessee filed its return on 30^th September,

2009 for AY 2009-2010. The assessment order was passed by the Assessing

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Officer (AO) under Section 143(3) of the Act on 1^st December, 2011. A

penalty order was passed for interest on late payment of TDS on 27^th

November, 2015.

3. In terms of the information obtained by the Assessee under the Right to

Information Act (RTI Act), it appeared that in the quantum matter the

ITAT‟s order dated 25^th March, 2013 in ITA Nos. 2859/Del/2013 and

2042/Del/2013 had been served on the CIT (Judicial), CR building, New

Delhi on 9^th April, 2015. The RTI information also disclosed that the order

of the ITAT was also simultaneously served on the same date on the CIT

(DR). The limitation period, therefore, began running from that date itself.

4. A Full Bench of this Court in Odeon Builders Pvt. Ltd. v. Principal

Commissioner of Income Tax (2017) 393 ITR 27 categorically held that in

the context of Section 260A of the Act, the limitation period for filing an

appeal against an order of the ITAT would begin to run immediately upon a

copy of the order being received by the CIT (Judicial).This Court rejected

the contention of the Revenue that till the „concerned jurisdictional CIT‟

received the order of the ITAT sought to be appealed against, limitation

would not begin to run. In other words, the expression „CIT‟ in Section 260

A (1) of the Act was interpreted by this Court as meaning any CIT and not

just the „concerned‟ CIT.

5. The decision of this Court in Odeon Builders Pvt. Ltd. (supra) was

affirmed by the Supreme Court by dismissal of the Revenue‟s SLP (C)

Diary No. 11792/2018 (Commissioner of Income Tax 7 v. M/s Odeon

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Builders Pvt. Ltd) on 1^st May, 2018.

6. Subsequent to the decision in Odeon Builders Private Limited (supra) the

issue whether the computation of limitation for initiation of penalty

proceedings under Section 158 (BFA) (3) (c) of the Act would also follow

the same logic was considered by this Court in ITA No. 822/2017 (Principal

Commissioner of Income Tax -14 v. Kamaljeet Khosla). There the ITAT

had followed the decision of this Court in Odeon Builders Private Limited

and held the penalty order in those cases to be beyond the period of 6

months after the order of the ITAT was first received by the CIT (Judicial).

The order of the ITAT in the aforementioned case was affirmed by this

Court by its order dated 20^thSeptember, 2017 dismissing the Revenue‟s

Appeal ITA No. 822/2017. Paras 5,6 and 7 of the said order are relevant for

the case on hand and read as follows:

“5. It is submitted by the learned counsel for the Revenue that the

decision of this Court in Odeon Builders Pvt. Ltd. (supra) was in the

context of an appeal under Section 260A of the Act and, therefore,

will not ipso facto apply to Section 158 BFA(3)(c) although the

expression used in both provisions is the same. Secondly, he subm