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ITA 1443/2018 Page 1 of 5

$~25

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ 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 16th 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 30th 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 1st December, 2011. A

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

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 25th March, 2013 in ITA Nos. 2859/Del/2013 and

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

Delhi on 9th 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 1st 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 20th September, 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 submits

that in the present case at the time the AO initiated the penalty

proceedings, the decision in Odeon Builders Pvt. Ltd. (supra) had not

been pronounced and, therefore, the said decision of this Court should

be held to be prospective, that is, applicable only to those cases where

the proceedings under Section 158 BFA (3) were initiated thereafter.

6. As far as the first submission is concerned, the Court finds that the

expression “received by the Principal Chief Commissioner or Chief

Commissioner or Principal Commissioner or Commissioner”

appearing in Section 158 BFA(3)(c) is identical to the expression in

Section 260A (1) of the Act which was interpreted by this Court in

Odeon Builders Pvt. Ltd. (supra) as any CIT and not necessarily the