, " "
INCOME TAX APPELLATE TRIBUNAL,MUMBAI - `F' BENCH.
[^ ., Ú¢ Û],
Before S/Sh.D.Manmohan, Vice-President & Rajendra,Accountant Member
/.ITA No.7569/Mum/2011,[ [/Assessment Year-2002-03
M/s Ushdev Commercial Services DCIT 7(3),
P. Ltd., New Herileela House, 6th Vs. Aayakar Bhavan, M.K.Road,
Floor, Mint Road, Mumbai-400001 Mumbai.
PAN: AAACU0549B
(/ Appellant) (× / Respondent)
[ / Assessee by : Sh.Vijay Mehta
/ Revenue by : Shri Senthil Kumaran
/ Date of Hearing : 01-07-2014
/ Date of Pronouncement : 03-09-2014
, 1961 254(1) Û[
Order u/s.254(1)of the Income-tax Act,1961(Act)
Per Rajendra,AM Û] :
Challenging the order dt.09.09.2011of the CIT(A)-18,Mumbai,assessee-company has raised
following Grounds of Appeal:
"1.On the facts and circumstance of the case and in law, the LD.CIT(A) erred in confirming the
action of the LAO of passing order levying penalty uls.271(1)(C) ignoring the fact that time limit
for passing the said order has expired. Order passed beyond time permissible under the Act is bad
in law and the same needs to be quashed.
2.Without prejudice to the above and without admitting, on the facts and circumstances of the case
and in law, the LD.CIT(A) erred in confirming the action of the LAO of levying penalty
u/s271(l)(c) to the extent of 100% being Rs.374986/-as against 200% levied by the LD.AO. Levy of
penalty without appreciating that assessee neither concealed any facts nor furnished any
inaccurate particulars is bad in law and the same needs to be deleted.
3.The assessee company craves leave to add, to amend, alter I delete and I or modify the above
ground of appeal on or before the final date of hearing."
2.Assessee-company,engaged in the business of investment, financing, discounting etc.,filed its
return of income on 29.10.2002 declaring loss of Rs.10,57,330/-.Assessing officer (AO) finalised
the assessment u/s.143(3) of the Act,on 27.01.2005, determining the total loss of Rs. 6,760/-.
Effective Ground of appeal pertains to imposition of penalty u/s.271(1)(c) of the Act.During the
assessment proceedings AO found that the assessee had claimed an expenditure of Rs.10,50,578/-
on account of discounting charges.He directed the assessee to file details of discounting charges.
After considering the reply of the assessee,the AO asked it to file the confirmation of the party
and the copy of the agreement requiring it to pay discount charges.The assessee did not provide
the necessary details and informed him that the party in question,M/s.Protech Circuit Breakers
Ltd.(PCBL),Baorda had closed down its business,that it was that it was providing the amounts
payable to the on an yearly basis, that the balance on account of discounting charges was Rs.91.95
Lakhs,that it was not in a position to give further evidence, that the office was invested with white
ends which had destroyed the entire documents.After considering the explanation of the assessee
the AO held that issue was a recurring since AY 1997-98, that the claim of discounting charges
had been disallowed,that the amount stated to have been received originally towards discounting
2 ITA No.7569/Mum/2011 M/s.Ushdev Commercial Services P. Ltd.
charges was utilised for purchase of shares of Ushdev International Ltd. (Rs. 1.86 Crores) and
some mutual funds.The AO,rejecting the claim made by it,initiated penalty proceedings
u/s.271(1)(c) of the Act.The assessee filed a reply on 02.08.2005 stating that it was in appeal
before the FAA and therefore penalty proceeding should be kept in abeyance. The FAA dismissed
the appeal filed by it,vide his order dated 04.04.2006. The assessee agitated the issue before the
Tribunal.Vide its order dated 05.09.2008 (ITA No. 4156/Mum/2006) the 'H' Bench of ITAT,
Mumbai dismissed the appeal of the assessee as withdrawn by it.
After the dismissal of the appeal by the Tribunal a fresh opportunity was granted to the assessee
by the AO,vide his letter dated 06.12.2009. It was submitted before him that it had withdrawn the
appeal filed before the Tribunal because the returned income and the assessed income was loss,
that in respect of AY 1999-2000 its appeal against the penalty order was allowed by the FAA, that
there was no tax liability.After considering the reply of the assessee,the AO held that in view of
the decision of the judgment of Hon'ble Supreme Court in the case of Gold Coin Health Foods P.
Ltd. penalty was leviable,that the FAA had dismissed the appeal filed by the assessee for the year
under consideration filed by it against the addition relating to the disallowance made by the
AO,that it was mentioned by the FAA that at no stage the assessee had furnished the supporting
evidences for its claim for discounting charges, that the it had concealed the particulars of income
of Rs.10.50 Lakhs for the year under appeal, that it was liable for penalty u/s 271(1)(c) of the Act,
that the tax sought to be evaded was Rs. 3.74 Lakhs, that the minimum penalty leviable was Rs.
3,74,986/- and the maximum penalty leviable was Rs.11.24 Lakhs.Finally,he levied penalty of Rs.
7,49,972/-,200% of the tax sought to be evaded.
2.1.Against the penalty order of the AO,the assessee preferred an appeal before the First Appeal
Authority(FAA).After considering the submissions of the assessee and the assessment order,he
held that the objection raised by the assessee relating to limitation/passing of the penalty order
beyond the permissible limit was not correct and tenable,that the assessee had filed an appeal to
the ITAT,that the appeal was dismissed on 05.09.2008,that it had withdrawn the appeal,that the
limitation would start from 05.09.2008 only,that the order imposing the penalty had been passed
within the stipulated time, permitted under the Act.He further held that his predecessor had found
it strange that the identity of the parties were not known to the assessee to whom payments were
still to be made"and at no stage the assessee could furnish the supporting evidence for it's claim
of discounting charges,that the assessee was in no position to explain and substantiate its claim of
discounting charges.FAA relied upon the judgment of the Hon'ble Supreme Court delivered in the
case of Reliance Petroproducts Pvt.L,td.(322ITR158).He also held that the assessee was in no
position to substantiate the claim.He confirmed the penalty imposed by the AO.However, he
directed the AO is to impose the penalty at 100% of the tax sought to be evaded instead of 200%
as imposed by him in the order.
2.2.Before us,Authorised Representative(AR) stated that the penalty order was passed beyond the
time limit prescribed by the Act, that the Act did not stipulate that AO should wait for the order of
the Tribunal for imposing penalty, that amendment was brought to curtail the time limit, that in
the budget speech the Finance Minister(FM)had mentioned about the need to bring the
amendment,that a task force had submitted a report in this regard,that budget speech of the FM
had to be given due weightage while deciding the cases, that the background material has to be
considered for understanding the amendment, that the explanation given by the assessee was not
found to be false, that it had made a claim in the return of income, that it had disclosed all the
facts in earlier years.He referred to the sections 143(2),115JB(vi),115(O)(vi)of the Act and stated
that proviso to the section should be considered in background of the section referred above.He
relied upon the decision of K. P.Varghese(131 ITR 597) and orders of Jasbirsingh(ITA/694/ Chd/
2010-AY.2004-05,-18.10.2010),BloosomFloriculture(134TTJ51),TarlochanSingh&Sons-HUF)
(114 TTJ 82),Mahindra and Mahindra Ltd.(313 ITR-AT,263), Bansal Parivahan(India)(P)Ltd.He
also referred to the Report of the Task Force on Direct taxes,CBDT Circular No. 7 of 2003
3 ITA No.7569/Mum/2011 M/s.Ushdev Commercial Services P. Ltd.
[Explanatory Notes on Finance Act, 2003] explaining amendment to Section 275 relating to time
limit for imposing penalty(263ITR-St.-117-118)],Memorandum explaining provisions in the
Finance Bill,2003[260ITR-St.-222,223]and budget speech of the FM.
Departmental Representative (DR) argued that the penalty was imposed within time,that the
assessee was questioning the wisdom of two High Courts,that the Hon'ble Court has settled the
law,that the proviso was to explain the main section, that the assessee did not produce any details
before the AO or the FAA, that other documents were not furnished by it, that the claim made by
the assessee was not genuine,that there was nothing in the speech of the FM about the time limit,
that it had withdrawn the appeal filed before the Tribunal, that it had filed inaccurate particulars.
He relied upon the case of Rayala Corporation P. Ltd.(288 ITR 452) of Hon'ble Madras High
Court. In the rejoinder the AR stated that the in the matters of Rayala Corporation P. Ltd.(supra)
and Mohair Investment and Trading Co. P. Ltd. (345 ITR 51) of Hon'ble High Courts had not
considered the budget speech and other related material.
2.3.We have heard the rival submissions and perused the material before us.The undisputed facts
of the case are that the AO had made certain additions to the income of the assessee,while
finalsing the assessment,that the appeal filed by the assessee was dismissed by the FAA,that the
assessee itself withdrew the quantum appeal filed before the Tribunal,that the AO levied penalty
u/s.271(1)(c)of the Act and same was confirmed by the FAA,that the assessee has raised the issue
of time limit before us,that the AR fairly agreed that two of the Hon'ble High Courts had decided
the issue against the stand taken by him,that according to the assessee the Hon'ble Courts had not
considered the speech of the FM and the other material.
Here,we would like to mention that in quantum proceedings the assessee had failed to substantiate
the claim made by it about the payments to be made.It is also surprising that the parties who had
to receive back the sums had not approached the assessee to return the amounts due from it till the
date of hearing before us,though sufficient time had lapsed.Without commenting upon the
argument of the assessee of destruction of documents by the white ants,we would like to mention
that the party who was due to receive money from the assessee had not approached it for last so
many years or it had not written any letter to PCBL,Baroda.It is claimed that the assessee is
crediting the account of PCBL,but it has not led the evidence of informing PCBL.It is mention
worthy that the assessee had claimed that it had received a sum of Rs.1.90 Crores(app.)for
discounting.From the details filed by it,one thing is clear that money received by it was utilised
for purchasing shares of Ushdev International.In these circumstances,the claim of discount
charges falls flat prima facie.It is surprising that a person advancing Rs.1.90Crore(app.)has
decided to forgo its claim.Making a claim of any expenditure in itself is not sufficient.It has to be
proved by some kind of evidence.If the assessee fails to do so,then it exposes itself to the
provisions of section 271(1)(c)of the Act.In the case under consideration,similar situation had
arisen.The AO,after considering the facts of the matter for the year under consideration,had levied
the penalty for furnishing inaccurate particulars of income and concealing income.As the quantum
appeal has not been decided on merits by the Tribunal,so,we would not like to discuss the issue in
detail.But, we would definitely like to meet all the arguments raised by the assessee before us.
2.3.1.First,we would discuss the argument raised by the assessee about the speech of the FM.In
our opinion the speech by the FM or other material at best can be taken help when there is
ambiguity about the legal position.In one of early cases,dealing with the subject i.e.,in the matter
of Sodra Devi (32 ITR 615),the Hon'ble Apex court had held that mischief rule could be applied
when the statutory provisions were ambiguous or is capable of more than one meaning.In the case
of Delhi Flour Mills Co. Ltd.,the Hon'ble Delhi High Court(95ITR151)has dealt with the
importance of reports of administrative committee and the speech of the FM,while dealing with
the provisions of section 24 of the Indian Income tax Act,1922.Counsel appearing on behalf of the
assessee had drawn the attention of the Hon'ble court to the report of the Direct Taxes
Administration Enquiry Committee 1958-59,which contained extracts from the speech of the FM
4 ITA No.7569/Mum/2011 M/s.Ushdev Commercial Services P. Ltd.
made in Parliament while piloting proviso (a) to Explanation 2 of section 24(1) of the Act.
Deciding the matter the Hon'ble Court held as under:
"It is only in cases where the language of any section of the statute is vague and the language is
capable of being interpreted in different ways that a court may derive some guidance from the
speech of the Minister who was piloting the particular piece of legislation in the legislature. In our
view, the language of proviso (a) to Explanation 2 is quite clear and we need not, therefore, seek
any guidance in the interpretation of this proviso from the speech of the Finance
Minister......Administration Enquiry Committee. But it is not necessary for us to express our view
regarding the same, because views expressed in such reports need not necessarily be taken as
reflecting the intention of the legislature. In fact, it may well be that, if the views expressed by the
Committee were not clearly reflected in the statute, it may be understood that the legislature did
not accept such views."
Hon'ble jurisdictional High Court in the matter of B.R. Sound-n-music(173ITR433),has also dealt
with the similar subject,while dealing with the provisions of section 271(4A)of the Act.The views
expressed by the Ho'ble Court are as under:
"In interpreting a section of the Act, the Statement of Objects and Reasons or the speech of the
Finance Minister should not be looked into, except for the limited purpose of ascertaining the
mischief which the Act seeks to remedy."
In the case of Ampro Food Products (215ITR904) the Hon'ble Andhra Pradesh High Court had
also deliberated upon the issue of speech of the FM while deciding the provisions of section 37
(3A) of the Act.Following is the relevant portion of the judgment:
"In order to understand the provision of any Act, reference to the speech made at the time of
introduction of the Bill is permissible only when the court finds that the provisions of the Act are
vague or ambiguous. The provisions of sub-section (3A) of section 37 are neither vague nor
ambiguous and hence the Finance Minister's speech while introducing sub-section (3A) of section
37 will not be a ground to hold that when the expenditure sought to be deducted under the head
"Sales promotion" is extravagant or socially wasteful, then only section 37(3A) should be
applied."
In the matter of Bhandari Machinery Co.(P.) Ltd.(231ITR294)the Hon'ble Delhi High Court
found that that the Tribunal allowed relief to the assessee,with regard to the provisions of section
40A(8)of the Act,on the basis of the speech of the FM.Reversing the decision Hon'ble Court held
that the speech of the Finance Minister, the Notes on Clauses and the circular issued by the
Company Law Board,were all external aids to interpretation which could not be resorted to when
the language of the enactment was plain and unambiguous.Similar view was expressed by the
Hon'ble Karnataka High Court in the case of Shankaranarayana Construction Co.,wherein it was
held (239ITR902)that the plain language of a statute could not be amended or stretched by the
court,that in the absence of ambiguity in a provision the statement of objects and reasons or the
speech of the Minister could not be used as an aid to the interpretation of a provision.
Finally,we would like to refer to the judgment of the Hon'ble Apex Court,that reiterates the
principle that unless and until there is any ambiguity in the provisions of any Act,on external help
should be taken and the Act should be read as it is.In the case of Padmasundra Rao,while deciding
the issue under Land Acquisition Act,1894,the Hon'ble Court(255ITR147)has held as under:
"The court cannot read anything into a statutory provision which is plain and unambiguous. A
statute is the edict of the Legislature. The language employed in a statute is the determinative
factor of legislative intent. The first and primary rule of construction is that the intention of the
legislation must be found in the words used by the Legislature itself.
The court only interprets the law and cannot legislate. If a provision of law is misused and
subjected to the abuse of the process of law, it is for the Legislature to amend, modify or repeal it,
if deemed necessary. Legislative casus omissus cannot be supplied by judicial interpretative
process.
A casus omissus cannot be supplied by the court except in the case of clear necessity and when
reason for it is found in the four corners of the statute itself. A casus omissus should not be readily
inferred and for the purpose all the parts of the statute or section must be construed together and
5 ITA No.7569/Mum/2011 M/s.Ushdev Commercial Services P. Ltd.
every clause of a section should be construed with reference to the context and other clauses
thereof so that the construction to be put on a particular provision makes a consistent enactment of
the whole statute. This would be more so if a literal construction of a particular clause leads to
manifestly absurd or anomalous results which could not have been intended by the Legislature. An
intention to produce an unreasonable result is not to be imputed to a statute if there is some other
construction available. Where to apply words literally would defeat the obvious intention of the
legislation and produce a wholly unreasonable result the court must do some violence to the words
so as to achieve that obvious intention and produce a rational construction."
In our opinion,a budget speech is only an introductory step to the Bill in Parliament and that in
itself is not an end,whereas the Act or the provisions of the Act are the final product of the
exercise carried out by the legislature after the bill is discussed at length at the floor of the house
and amended,if required.If the provisions of the Act are so clear that there cannot be two opinions
about them then to go behind them and to refer the speech of the FM is only an academic
exercise.In the case under consideration it cannot be held that there is ambiguity in the provisions
or there can be two opinions.While deciding an identical issue in the case of Mohair Investment
and Trading Co. P. Ltd.(supra) the Hon'ble Delhi court has mentioned that the Counsel of the
assessee had referred to purpose of the amendment was to accelerate the proceedings.We find that
the similar phrase is used in the recommendation of the task force.After considering the said
argument,if the Hon'ble Court has held the issue against the issue then in our opinion the
argument of non consideration of the committee report or the speech is of no help to the assessee.
2.3.2.It will be useful to discuss the case of Mohair Investment and Trading Co. P. Ltd.(supra).In
that matter following question of law was raised
"Whether the learned Income-tax Appellate Tribunal erred in holding that penalty has been levied
after expiry of limitation period as laid down under section 275(1)(a) of the Income-tax Act ?"
Facts of the case were that the assessee filed its return of income on 29.10.2001.Vide assessment
order dated 28.02.2003,the AO completed that assessment and intimated the assessee about his
intention of initiating penalty proceedings.FAA confirmed that order of the AO of 23.12.2005 and
the Tribunal dismissed the appeal of the assessee on 11.08.2008.On 26.02.2009 the AO levied
penalty u/s.271(1)(c) of the Act and same was confirmed by the FAA on 12.10.2009. Consequent
-ly,the assessee approached the Tribunal which allowed the appeal of the assessee, vide order
dated 30.04.2010,holding that penalty was imposed beyond the period of limitation as prescribed
under section 275(1)(a) of the Act.While discussing the matter the Hon'ble recorded the
arguments of the assessee in following manner:
"On the contrary, the submission on behalf of the assessee was that the provision had been
amended and the proviso introduced to carve out a new set of cases which dealt with the order
passed by the Commissioner of Income-tax (Appeals) after June 1, 2003. It was next argued that
the objective behind the introduction of the proviso was to accelerate the proceedings in which
punishment is imposed by the Assessing Officer. Lastly, it was argued that section 275(1)(a) has to
be read in consonance with section 275(1A)."
After considering the rival arguments and relying upon the decision of the Hon'ble Madras High
delivered in the case of Rayala Corporation P. Ltd.(288 ITR 452) the Hon'ble High Court has
held as under:
"A proviso is merely a subsidiary to the main section and must be construed in the light of the
section itself. It has to be construed harmoniously with the main provision.The period of six
months provided for imposition of penalty under section 275(1)(a) of the Income-tax Act, 1961,
starts running after the successive appeals from an assessment order has been finally decided by
the Commissioner (Appeals) or the Tribunal, as the case may be, whichever period expires
later.The proviso to section 275(1)(a) has only the effect of extending the period of imposing
penalty from six months to one year within the receipt of the order of the Commissioner after June
1, 2003.The proviso thus carves out an exception from the main section inasmuch as in cases
where no appeal is filed before the Tribunal the Assessing Officer must impose penalty within a
period of one year to be reckoned from the date of receipt of the order by the Commissioner.
6 ITA No.7569/Mum/2011 M/s.Ushdev Commercial Services P. Ltd.
Section 275(1A) which was introduced later on does not dilute or in any manner render nugatory
the main provision, which can only be read to mean that the limitation period for levy of penalty,
only in the case of order of the Tribunal, to be as provided under the main section and not
otherwise. The proviso to section 275(1)(a) of the Act does not nullify the availability to the
Assessing Officer of the period of limitation of six months from the end of the month when the
order of the Tribunal is received by the Assessing Officer. ...that the order of the Tribunal was
rendered on August 11, 2008, and the order passed by the Assessing Officer levying penalty was
passed on February 26, 2009, i.e., within a period of six months from the order of the Tribunal. It
was not barred by limitation."
The Hon'ble Court had also discussed the purposes of a proviso to a section of the Act.After
considering the relevance of the proviso it was further held that the proviso to section 275(1)(a)
had only the effect of extending the period of imposing penalty from six months to one year
within the receipt of the order of the Commissioner after June 1, 2003.
We also find that while deciding the issue the Hon'ble Delhi High Court in the case of Mohir
Investment & Trading Co. Pvt. Ltd.(supra) has considered the explanatory note and memorandum
explaining the amendment.It is true that in the order specific mention of these documents is not
there,but the order clearly shows that they had been considered. Hon'ble Court has mentioned that
by introducing the proviso a separate category was carved out where the limit was extended.We
find that in the CBDT circular (supra) at paragraph 80.2 it is mentioned that penalty proceedings
were to be completed within 1 year from the end of the financial year.
Here it would be useful to take notice of the judgment of Rayala Corporation P. Ltd.(supra) of
Hon'ble Madras High Court. In that matter Hon'ble Court had held that the limitation period for
the levy of penalty would be as provided for under section 275(1)(a) that is six months from the
end of the month in which the order of the Tribunal is received by the Income-tax Officer.
In light of the above two decisions of the Hon'ble High Courts,we are of the opinion that we have
to follow them and decide the issue accordingly.Judicial discipline and precedents demand that
the Tribunal should not question the wisdom of the Hon'ble High Court.Before us,there are two
judgments and we would like to follow them not only because we believe in judicial hierarchy,but
also for the reason that the section 275 is a procedural section.
2.3.3.One of the basic principle of the taxation jurisprudence stipulates that no one has a vested
and substantive right in the procedure and limitation has to be considered as a part of the
procedural law as distinct from substantive law,that the law of procedure may be said to be that
branch of the law which governs the process of litigation,that it is the law of actions : all the
residue is substantive law and relates not to the process of litigation, but to its purposes and
subject-matter. In other words, the substantive law defines the remedy and the right, while the law
of procedure defines the modes and conditions of application of the one to the other. Our view is
based on the full bench decision of the Hon'ble Andhra Pradesh High Court pronounced in the
case of Watan Mechanical and Turning Works(107ITR743).In that matter the Hon'ble Court was
dealing with the amendment to the section 275 of the Act.Hon'ble Court held as under:
"The liability for tax or penalty would always remain on the assessee; but if the time prescribed
under the Act expires, the liability cannot be imposed by the authorities, the reason being that the
assessee should not be subjected to unending hardship. However, before the limitation prescribed
expires, if the same is enlarged, the limitation being a procedural one, the extended period of
limitation will apply to such proceedings.
In the instant case, under the old section 275, as it stood before the Amendment Act, 1970, the
limitation for levying penalty was due to expire by February 25, 1972. As section 275 of the
Income-tax Act was amended with effect from April 1, 1971, enlarging the limitation, the amended
section governs the case under which the impugned orders levying penalty would be in time as
they were made before 31st March, 1972."
We have gone through the cases relied upon by the assessee delivered by the various benches of
the Tribunal,but we are unable to agree with views expressed in them in because of the above
7 ITA No.7569/Mum/2011 M/s.Ushdev Commercial Services P. Ltd.
referred two judgments of the Hon'ble High Courts.We have gone through them and find that the
issue has been discussed at length.We find that there is no reason as to why same should not be
followed.As far as provisions of sections 115, 143, 115(o) are concerned,it is suffice to say that
they all deal with substantive law and determine the rights of the assessee.A perusal of chapter
XXI reveal that section 271 is a substantive provision whereas section 274 provides the procedure
to be followed in giving effect to the said substantive charging provision and section 275 creates a
bar of limitation against the imposition of penalty.Thus,while deciding the question of limitation
as mentioned in the section,we are of the opinion that penalty order passed by the AO was within
the time-limit envisaged by the Act.We also find that the FAA has reduced the penalty from 200%
to 100%.Thus,his order,in our opinion, is reasonable and justifiable and it does not suffer from
any legal or factual infirmity.So, confirming the same,we decide the effective ground of appeal
against the assessee.
As a result,appeal filed by the assessee stands dismissed.
[ .
Order pronounced in the open court on 3rd September,2014.
Û 3 à,2014
Sd/- Sd/-
( . /D.Manmohan) (Û]/Rajendra)
Ú¢ /VICE PRESIDENT /ACCOUNTANT MEMBER
/Mumbai,/Date: 03.09.2014.
SK
/Copy of the Order forwarded to :
1. Assessee / 2. Respondent /×
3. The concerned CIT(A)/ ,4.The concerned CIT /
5. DR "F" Bench, ITAT, Mumbai / , ,..Û.
6. Guard File/[
× //True Copy//
/ BY ORDER,
/ Dy./Asst. Registrar
, /ITAT, Mumbai
|
