Gobindapur Samabay K. U. S. Ltd., Hooghly V. ACIT, CIR-HOOGLY, Hooghly

ITA 1228/KOL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1618 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 23-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 92E

Judgement Text

1 ITA NO.1228/KOL/21015 GOBINDAPUR SAMABY K.U.S. LTD. A.Y.2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI WAS EEM AHMED, AM ] ITA NO1228/KOL/2015 ASSESSMENT YEAR : 2009-10 GOBINDAPUR SAMABAY K.U.S.LTD. -VERSUS- A.C.I.T.-C IRCLE-1, HOOGHLY HOOGHLY. (PAN:AAALG 0017 B) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI SOUMEN BISWAS, FCA FOR THE RESPONDENT: SHRI S.DASGUPTA, ADDL. CIT(DR) DATE OF HEARING : 16.01.2018. DATE OF PRONOUNCEMENT : 02.02.2018. ORDER PER N.V.VASUDEVAN, JM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 23.03.2015 OF C.I.T.(A)-6, KOLKATA RELATING TO A.Y.2009-10. 2. IN THIS APPEAL THE ASSESSEE HAS CHALLENGED TH E ORDER OF CIT(A) WHEREBY THE CIT(A) CONFIRMED THE ORDER OF AO IMPOSING PENALTY O N THE ASSESSEE U/S 271B OF THE INCOME TAX ACT, 1961 (ACT). 3. UNDER THE PROVISION OF SECTION 271B OF THE ACT IF ANY PERSON WHO IS REQUIRED TO GET ITS ACCOUNTS AUDITED AND FURNISH REPORT OF SUCH AUDIT U/S 44AB OF THE ACT FAILS TO DO SO HE SHALL BE LIABLE TO PENALTY EQUAL TO ONE HA LF PERCENT OF THE TOTAL SALES, TURN OVER OR GROSS RECEIPTS IN BUSINESS DURING THE RELEVANT P REVIOUS YEAR OR A SUM OF RS. 1 LAKH, WHICHEVER IS LESS. IT IS NOT DISPUTED THAT THE ASS ESSEE WAS OBLIGED TO GET HIS ACCOUNTS AUDITED U/S 44AB OF THE ACT. IT IS ALSO NOT IN DIS PUTE THAT THE ASSESSEE GOT HIS ACCOUNTS AUDITED BY A CHARTERED ACCOUNTANT AND OBTA INED REPORT OF SUCH AUDIT BEFORE THE SPECIFIED DATE I.E. 30 TH DAY OF SEPTEMBER OF THE RELEVANT ASSESSMENT YEAR. IN THIS CASE THE ASSESSEE OUGHT TO HAVE FURNISHED TAX AUDIT REPORT BY FILING THE SAME ON OR BEFORE 30.09.2009. THE ASSESSEE FILED THE RETURN OF INCOME IN THIS CASE ONLY ON 05.03.2010. 2 ITA NO.1228/KOL/21015 GOBINDAPUR SAMABY K.U.S. LTD. A.Y.2009-10 4. IT IS THE PLEA OF THE ASSESSEE THAT THOUGH HE HA D OBTAINED THE TAX AUDIT REPORT OF A CHARTERED ACCOUNTANT BEFORE THE SPECIFIED DATE HE COULD NOT FURNISH THE SAME BEFORE THE SPECIFIED DATE BECAUSE FROM A.Y.2009-10 RETURNS HAD TO BE FILED ELECTRONICALLY. THE CBDT IN CIRCULAR NO.3/2009 DATED 21.05.2009 IN PARAGRAPH-7 CLARIFIED THAT WHETHER RETURNS ARE FILED ELECTRONICALLY THE TAX AU DIT REPORT NEED NOT BE FILED ALONG WITH THE RETURN OF INCOME AND THAT IT WOULD BE SUFF ICIENT IF THE DETAILS OF THE TAX AUDIT REPORT ARE MENTIONED IN THE RETURN OF INCOME IN THE RELEVANT COLUMN. PARA 7 OF THE SAID CIRCULAR IS AS FOLLOWS :- 7. FOLLOWING CLARIFICATIONS ARE ALSO ISSUED IN RES PECT OF CERTAIN ISSUES ARISING FROM FURNISHING THE RETURNS IN THE ABOVE MENTIONED FORMS: (I) AN ASSESSEE SHOULD OBTAIN THE REPORT OF AUDIT F ROM AN ACCOUNTANT UNDER SECTION 44AB OF THE ACT ON OR BEFORE THE DUE DATE OF THE FURNISHING OF THE RETURN AND SHOULD FILL OUT THE RELEVANT COLUMNS OF THE RET URN FORMS ON THE BASIS OF SUCH REPORT. HOWEVER, THE REPORT OF AUDIT SHOULD NOT BE ATTACHED WITH THE RETURN OR FURNISHED SEPARATELY ANY TIME BEFORE OR AFTER THE D UE DATE. THE ASSESSEE SHOULD RETAIN THE REPORT WITH HIMSELF. IF CALLED FOR BY AN Y INCOME-TAX AUTHORITY DURING ANY PROCEEDING UNDER THE ACT, IT SHALL BE INCUMBENT UPON THE ASSESSEE TO FURNISH/PRODUCE THE SAME IN ORIGINAL. NO PENALTY UN DER SECTION 271B SHALL BE INITIATED OR LEVIED FOR NOT FURNISHING THE TAX AUDI T REPORT ON OR BEFORE THE DUE DATE. HOWEVER, IF THE AUDIT REPORT HAS NOT BEEN OBT AINED BEFORE THE DUE DATE, PROVISIONS OF SECTION 271 B SHALL CONTINUE TO BE AT TRACTED. (II) THESE RETURNS ARE NOT TO BE ACCOMPANIED WITH A NY OTHER DOCUMENT INCLUDING ANY STATUTORY FORM OR REPORT OF AUDIT (OTHER THAN T HE REPORT UNDER SECTION 92E), WHICH IS OTHERWISE REQUIRED TO BE FURNISHED BEFORE THE DUE DATE OR ALONG WITH THE RETURN FOR MAKING ANY CLAIM. THE PROVISIONS OF THE LAW SHALL BE DEEMED TO HAVE BEEN COMPLIED WITH IN RESPECT OF THE REQUIREMENT OF THE FILING OF THE ATTACHMENTS OR DOCUMENTS OR REPORTS ALONG WITH THE RETURN. NO P ENALTY SHALL BE INITIATED/ LEVIED FOR NOT FURNISHING SUCH DOCUMENTS IF SUCH DO CUMENTS WERE OTHERWISE OBTAINED BEFORE THE SPECIFIED DATE, IF ANY, PROVIDE D IN THE STATUTE. ALL THESE DOCUMENTS SHOULD BE RETAINED BY THE TAXPAYERS. IF C ALLED FOR BY ANY INCOME-TAX AUTHORITY DURING ANY PROCEEDING UNDER THE ACT, IT S HALL BE INCUMBENT UPON THE ASSESSEE TO FURNISH/PRODUCE THE SAME, IN ORIGINAL. (III) THE REPORT AS REQUIRED UNDER SECTION 92E OF T HE INCOME-TAX ACT SHOULD NOT BE FURNISHED ALONG WITH THE RETURN. HOWEVER, IT SHO ULD BE SEPARATELY FURNISHED BEFORE THE DATE SPECIFIED IN RULE 10E.. 3 ITA NO.1228/KOL/21015 GOBINDAPUR SAMABY K.U.S. LTD. A.Y.2009-10 5. BOTH THE AO AND CIT(A) DID NOT AGREE WITH THE ST AND TAKEN BY THE ASSESSEE. THEY WERE OF THE VIEW THAT HAD THE ASSESSEE FILED T HE RETURN OF INCOME ON OR BEFORE THE DUE DATE U/S 139(1) OF THE ACT THEN THE PLEA OF THE ASSESSEE COULD BE ACCEPTED. SINCE THE ASSESSEE HAD FILED THE RETURN OF INCOME IN THE PRESENT CASE ONLY ON 05.03.2010, THE REVENUE AUTHORITIES WERE OF THE VIEW THAT THE ASSES SEE CANNOT GET THE BENEFIT OF THE CIRCULAR. THEY ALSO HELD THAT THERE WAS NO REASONAB LE CAUSE FOR THE FAILURE TO FURNISH THE TAX AUDIT REPORT BEFORE THE SPECIFIED DATE. ACC ORDINGLY IMPOSED PENALTY OF RS.62,721/- U/S 271B OF THE ACT. 6. AGGRIEVED BY THE ORDER OF CIT() THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. THE LD. COUNSEL FOR THE ASSESS EE RELIED ON CBDT CIRCULAR REFERRED TO IN THE EARLIER PART OF THIS ORDER. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS CLEAR FROM PARA-7 OF THE CBDT CIRCULAR NO.3/2009 THAT FURNISHING OF TAX AUDIT REP ORT, WHEN A RETURN IS FILED ELECTRONICALLY, ALONG WITH THE RETURN WAS DISPENSED WITH. THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE HAD NOT OBTAINED THE TAX AUD IT REPORT BEFORE THE SPECIFIED DATE. THE FACT THAT THE RETURN WAS FILED BELATEDLY BEYOND THE PERIOD ALLOWED U/S 139(1) OF THE ACT CANNOT BE THE BASIS TO HOLD THAT THE ASSESS EE FAILED TO COMPLY WITH THE REQUIREMENT OF FURNISHING THE TAX AUDIT REPORT BEFO RE THE SPECIFIED DATE U/S 44AB OF THE ACT. IN THE LIGHT OF CIRCULAR NO.3/2009 IT COU LD NOT BE SAID THAT FURNISHING OF TAX AUDIT REPORT U/S 44AB OF THE ACT WAS AN INDEPENDENT OBLIGATION NOT LINKED WITH THE FILING OF THE RETURN OF INCOME. SINCE THE CBDT CIRC ULAR IS SILENT ON THE BELATED FILING OF THE RETURN VIS-A-VIS PROVISION OF SECTION 271B O F THE AC, THE ASSESSEE IS ENTITLED TO THE BENEFIT OF THE CIRCULAR. IT CANNOT THEREFORE BE SAID THAT THERE WAS A FAILURE ON THE PART OF THE ASSESSEE U/S 44AB OF THE ACT. THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT THE ASSESSEE HAD NOT OBTAINED THE TAX AUDIT REPORT BEFORE THE SPECIFIED DATE. IN THESE 4 ITA NO.1228/KOL/21015 GOBINDAPUR SAMABY K.U.S. LTD. A.Y.2009-10 CIRCUMSTANCES WE ARE OF THE VIEW THAT PENALTY OUGHT NOT TO HAVE BEEN IMPOSED ON THE ASSESSEE. WE ACCORDINGLY DIRECT THAT PENALTY IMPOSE D ON THE ASSESSEE BE CANCELLED. 8. IN THE RESULT THE APPEAL OF THE ASSESSE IS ALLOW ED. O RDER PRONOUNCED IN THE OPEN COURT ON 02.02.2018. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02.02.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.GOBINDAPUR SAMABAY K.U.S.LTD., NASIBPUR, HOOGHLY (W.B.) 2. A.C.I.T., CIRCLE-1, HOOGHLY. (W.B.) 3. C.I.T.(A)-6, KOLKATA. 4. C.I.T.-8, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES