S.Sridharan, Trichy V. DCIT, Trichy

ITA 1116/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95900 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 12-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . , . ' #$ , % & BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ./ ITA NO.1116/MDS/2015 ASSESSMENT YEAR : 2006-07 SHRI S. SRIDHARAN, PLOT 6 II MAIN ROAD, GNANAM COLONY, RAMALINGANAGAR, TRICHY 620 003. PAN : AAHPS 8921 P V. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE II, TRICHY. ()*/ APPELLANT) (+,)*/ RESPONDENT) )* - . / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE +,)* - . / RESPONDENT BY : DR. B. NISCHAL, JCIT ' - / / DATE OF HEARING : 06.08.2015 01 - / / DATE OF PRONOUNCEMENT: 19.08.2015 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-I, TIRUCHIRAPPALLI, DATED 08.01.2015. 2. THERE IS A DELAY OF 10 DAYS IN FILING THE APPEAL . THE ASSESSEE HAS FILED AN AFFIDAVIT FOR CONDONATION OF DELAY, WHEREIN HE 2 I.T.A. NO.1116/MDS/15 HAS SUBMITTED THAT THE ORDER OF THE CIT(APPEALS) DA TED 8 TH JANUARY, 2015 WAS SERVED ON HIM ON 3 RD MARCH, 2015 ONLY. FURTHER THE ASSESSEE HAS STATED THAT AS HIS COUNSEL WAS NOT IN THE TOWN, HIS COUNSEL COULD PREPARE THE PAPERS ONLY ON 9 TH MAY, 2015 AND FINALLY HE COULD FILE THE APPEAL ONLY ON 12.05.2015. HENCE THERE WAS A DELAY OF 10 DAYS IN FILING THE APPEAL AND HE HAS PR AYED FOR CONDONATION OF THE SAME. 3. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE HAS NOT RAISED ANY SERIOUS OBJECTION. 4. WE FIND THAT THERE IS A SUFFICIENT REASON FOR NO T FILING THE APPEAL WITHIN THE STIPULATED PERIOD AND WE FIND THA T THIS IS A FIT CASE TO CONDONE THE DELAY. ACCORDINGLY, THE DELAY OF 10 DAYS IS CONDONED AND THE APPEAL IS ADMITTED. 5. COMING TO THE MERITS OF THE CASE, FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HE FILED THE RETURN O F INCOME FOR THE YEAR UNDER CONSIDERATION ENCLOSING AUDIT REPORT IN FORM 3CD AND 3CB DATED 09.03.2007, ON 13.03.2007. THE RETURN FI LED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). THE PENALTY PROCEE DINGS ARE ALSO INITIATED AGAINST THE ASSESSEE UNDER SECTION 271B O F THE ACT BY THE 3 I.T.A. NO.1116/MDS/15 ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE H AS VIOLATED THE PROVISIONS OF SECTION 44AB OF THE ACT AND OBSERVED THAT THE ASSESSEE SHOULD HAVE FILED THE RETURN OF INCOME ON 31.10.2006 OR THE ASSESSEE SHOULD HAVE OBTAINED THE AUDIT REPORT BEFORE 31.10.2006 AS REQUIRED UNDER THE PROVISIONS OF SECT ION 44AB OF THE ACT. ON RECEIPT OF THE PENALTY NOTICE, THE ASSESSE E EXPLAINED BEFORE THE A.O. THAT HE HAD FILED THE ORIGINAL RETU RN ALONG WITH FORM 3CD & 3CB FOR THE ASSESSMENT YEAR 2006-07 ON 13.03. 2007AND REVISED RETURN ON 20.02.2008. HE FURTHER STATED TH AT SINCE THERE WAS A SURVEY CONDUCTED IN HIS CASE DURING FEBRUARY, 2006 AND BOOKS OF ACCOUNT WERE IMPOUNDED BY THE INCOME-TAX D EPARTMENT, HE FILED THE RETURN ALONG WITH TAX AUDIT REPORT ON 13.03.2007, I.E. BEFORE THE END OF THE ASSESSMENT YEAR. HOWEVER, TH E A.O. WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE ON T HE GROUND THAT EVEN IF THERE WAS A SURVEY CONDUCTED AND BOOKS WERE WITH THE DEPARTMENT, THE ASSESSEE SHOULD HAVE MADE AN APPLIC ATION FOR RELEASE OF THE BOOKS AND THE ACCOUNTS SHOULD HAVE G OT AUDITED IN TIME. THEREFORE, HE IMPOSED PENALTY UNDER SECTION 271B OF THE ACT. 6. ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS) CONF IRMED THE PENALTY IMPOSED BY THE A.O. 4 I.T.A. NO.1116/MDS/15 7. WE HAVE HEARD BOTH SIDES AND PERUSED THE RECORDS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE PENALTY IS IMPOSED IN THIS CASE UNDER SECTION 271B OF THE ACT ON THE GROUND THAT THERE WAS A DELAY FOR OBTAINING THE AUDIT REPO RT UNDER SECTION 44AB OF THE ACT. THE ASSESSEE HAS EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE DELAY WAS DUE TO SURVEY CONDUCTED AND ALL THE BOOKS WERE IMPOUNDED BY THE DEPARTMENT, THEREFORE, HE WAS NOT ABLE TO GET THE ACCOUNTS AUDITED IN TIME, I.E. AS R EQUIRED UNDER THE PROVISIONS OF SECTION 44AB OF THE ACT. THE ASSESSI NG OFFICER ACCEPTED THAT THE BOOKS WERE WITH THE DEPARTMENT. HOWEVER, HE REJECTED THE EXPLANATION OF THE ASSESSEE ON THE GRO UND THAT THE ASSESSEE SHOULD HAVE REQUESTED THE DEPARTMENT TO RE LEASE THE BOOKS. WE FIND THAT THE DEPARTMENT HAS NOT DENIED THAT THE BOOKS WERE WITH THEM. THE ONLY GROUND FOR PENALTY WAS TH AT THE ASSESSEE OUGHT TO HAVE REQUESTED THE DEPARTMENT FOR RELEASE OF THE BOOKS. WHEN THERE WAS A SURVEY CONDUCTED AND WHEN THE BOOK S WERE WITH THE DEPARTMENT AND WHEN THE BOOKS WERE RELEASED, IM MEDIATELY THE ASSESSEE GOT THE ACCOUNTS AUDITED AND SUBMITTED BEFORE THE A.O. UNDER THESE FACTS AND CIRCUMSTANCES, WE ARE O F THE OPINION THAT THERE IS A JUSTIFIED REASON FOR THE ASSESSEE F OR NOT FILING AUDIT REPORT IN TIME. THEREFORE, SECTION 271B CANNOT BE ATTRACTED IN THIS 5 I.T.A. NO.1116/MDS/15 CASE. THUS, THE PENALTY IMPOSED BY THE A.O. AND CO NFIRMED BY THE CIT(APPEALS) IS QUASHED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 19 TH AUGUST, 2015 AT CHENNAI. SD/- SD/- ( . ) ( . ' #$ ) (A. MOHAN ALANKAMONY) (V. DURGA RAO) /ACCOUNTANT MEMBER % /JUDICIAL MEMBER /CHENNAI, > /DATED, THE 19 TH AUGUST, 2015. KRI. ? - +%/@A BA1/ /COPY TO: 1. )* /APPELLANT 2. +,)* /RESPONDENT 3. ' C/ () /CIT(A), TIRUCHIRAPPALLI-1 3. ' C/ /CIT-1, TRICHY 4. A E# +%/% /DR 5. #F$ G /GF.