Proviso to s 275(1)(a) does not nullify the availability to the AO of the period of limitation of six months from the end of the month when the order of the ITAT is received by the AO — as held by DelHC in CIT v Mohair Investment And Trading Co P Ltd — In favour of: Revenue.
The period of six months for the imposition of a penalty under s 275(1)(a) starts running after the successive appeals from an assessment order has been finally decided by the CIT(A) or the ITAT as the case may be whichever period expires later.
The proviso to s 275(1)(a) only has 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 1 June 2003. The proviso thus carves out an exception from the main section, inasmuch as in cases where no appeal is filed before the ITAT, 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. 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. Proviso to s 275(1)(a) does not nullify the availability to the AO of the period of limitation of six months from the end of the month when the order of the ITAT is received by the AO. In the present case, the order of the ITAT was rendered on 11 August 2008 and the order passed by the AO levying penalty was passed on 26 February 2009, ie within a period of six months from the order of the ITAT.
Decided on: 30 September 2011.
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