Shri. Babusing M.Jadhav, Yeotmal V. Income Tax Officer Ward-2,., Yeotmal

ITA 126/NAG/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9657 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 27-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH DAWANDE
• Assessee Lawyers: P M GANDHI
• Keywords: Reasonable cause

Judgement Text

ITA NO S . 122 TO 126/NAG/2010 BHIKULAL BACCHUBHAI PATEL AND OTHERS, YAVATMAL ETC. IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH , NAGPUR BEFORE: SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI D.T. GARASIA , JUDICIAL MEMBER ITA NO. 122 / NAG / 20 10 ASSESSMENT YEAR : 2007 - 08 BHIKULAL BACCHUBHAI PATEL YAVATMAL VS. ITO WARD - 2 YAVATMAL (APPELLANT) (RESPONDENT) PAN NO.ABTPP 4432B ITA NO.123/NAG/2010 ASSESSMENT YEAR : 2007 - 08 PAVAN MEDICALS YAVATMAL VS. ITO WARD - 2 YAVATMAL (APPELLANT) (RESPONDENT) PAN NO.AAIFP 42956G ITA NO.124/NAG/2010 ASSESSMENT YE AR : 2007 - 08 RAJENDRA UTTAMCHAND PATIL YAVATMAL VS. ITO WARD - 2 YAVATMAL (APPELLANT) (RESPONDENT) PAN NO.ABSPP 8017F ITA NO.125/NAG/2010 ASSESSMENT YEAR : 2007 - 08 MOHD. JAKIR HAJI MOHD. HARUN ISANI YAVATMAL VS. ITO WARD - 2 YAVATMAL (APPELLANT) (RESPONDENT) PAN NO.AALPI 7774A ITA NO.126/NAG/2010 ASSESSMENT YEAR : 2007 - 08 BABUSING M. JADHAV YAVATMAL VS. ITO WARD - 2 YAVATMAL (APPELLANT) (RESPONDENT) PAN NO. ABLPJ 1516E ITA NOS.122 TO 126/NAG/2010 BHIKULAL BACCHUBHAI PATEL AND OTHERS, YAVATMAL ETC. 2 APPELLANT BY: SHRI P.M. GANDHI, CA RESPONDENT BY: SHRI RAMESH DAWANDE, SR. DR DATE OF HEARING: 15.10.2012 DATE OF PRONOUNCEMENT: 16.10.2012 ORDER PER P.K. BANSAL, ACCOUNTANT MEMBER: - IN ALL THESE APPEALS, THE ISSUE INVOLVED IS COMMON. THEREFORE, ALL THESE APPEALS ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. THE ONLY ISSUE INVOLVED IN EACH OF THE APPEAL IS THE LEVY OF THE PENALTY U/S 272B ON ACCOUNT OF NON - FURNISHING OF PERMANENT ACCOUNT NUMBER (PAN). BOTH THE LD. A.R. & D.R. AGREED THAT THE FACTS INVOLVED IN ALL THESE APPEALS ARE COMMON AND THEREFORE, THE AP PEAL MAY BE DECIDED ON THE BASIS OF THE FACTS INVOLVED IN THE CASE OF BHIKULAL BHACCHUBHAI PATEL. WE, THEREFORE, DISPOSING OF ALL THESE APPEALS AFTER TAKING THE FACTS IN THE CASE OF BHIKULAL BHACCHUBHAI PATEL. 2. THE BRIEF FACTS OF THE CASE ARE THAT IN EACH OF THE CASE, THE ASSESSEE COULD NOT FILE THEIR RESPECTIVE RETURN BEFORE THE DUE DATE AND HENCE THE COPY OF THE AUDITED REPORT U/S 44AB WAS FILED ON 31.10.2002. THE ASSESSING OFFICER NOTED THAT IN THE AUDITED REPORT, FORM NO.3CB AND 3CD THE AUDITOR D ID NOT QUOTE THE PERMANENT ACCOUNT NUMBER. THE ASSESSING OFFICER, THEREFORE, ISSUED SHOW CAUSE NOTICE IN EACH OF THE CASE FOR LEVYING OF PENALTY U/S 272B FOR THE FAULT OF NON - QUOTING OF PAN READ WITH SECTION 139(5)(A) OF THE INCOME - TAX ACT. THE ASSESSEE IN REPLY CONTENDED THAT THE ASSESSEE IS AN OLD ASSESSEE. BY OVERSIGHT WITHOUT ANY MALAFIDE INTENTION, PAN NO. WAS NOT QUOTED ON THE AUDIT REPORT AND IT IS NOT THE FAULT OF THE ASSESSEE. THE AUDIT REPORT HAS TO BE GIVEN BY THE AUDITOR. THE ASSESSING OFFI CER LEVIED THE PENALTY IN THE CASE OF EACH ASSESSEE AMOUNTING TO RS.10,000/ - U/S 272B. 3. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT THE ASSESSEE HAVING A VALID PAN AND THE ASSESSEE HAS QUOTED THE PAN NO. ON THE RETURN. THE ASSESSEE DOES NOT HAVE A NY RIGHT TO AMEND OR ADD ANYTHING IN THE AUDIT REPORT PREPARED BY THE AUDITOR. ITA NOS.122 TO 126/NAG/2010 BHIKULAL BACCHUBHAI PATEL AND OTHERS, YAVATMAL ETC. 3 NON - QUOTING OF THE PAN NO. ON TAX AUDIT REPORT IS NOT THE DEFAULT COMMITTED BY THE ASSESSEE U/S 139(5)(A). THE CIT(A) DID NOT AGREE WITH THE SUBMISSION OF THE ASSESSEE BUT CON FIRMED THE PENALTY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS ALONG WITH THE ORDER OF THE TAX AUTHORITIES. WE NOTED THAT THE ASSESSEE HAD DULY QUOTED THE PAN NO. ON ITS INCOME - TAX RETURN. THE AUDIT REPORT IS TO BE PREPARED AND SIGNED BY THE TAX AUDITOR AN D NOT BY THE ASSESSEE. SECTION 292B IS APPLICA BLE , IF THE ASSESSEE HAS FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 139A. THE ASSESSING OFFICER, WHILE IMPOSING THE PENALTY U/S 272B, TOOK THE VIEW THAT THE ASSESSEE HAS COMMITTED THE DEFAULT AS PER THE PROVISIONS OF SECTION 139A(5)(A). SECTION 139A(5)(A) STATES AS UNDER: EVERY PER SON SHALL .. (A) QUOTE SUCH NUMBER IN ALL HIS RETURNS OR CORRESPONDENCE WITH, ANY INCOME TAX AUTHORITY 5. FROM T HE PERUSAL OF THE SAID SECTION, IN OUR O PINION, IT IS OBLIGATORY ON THE PART OF THE ASSESSEE, TO QUOTE PERMANENT ACCOUNT NUMBER IN ALL HIS RETURNS AND THE CORRESPONDENCE WITH THE INCOME - TAX AUTHORITIES. THE ASSESSEE, IN ALL THESE CASES HAVE FILED THE TAX AUDIT REPORT BUT THE TAX AUDIT REPORT CA NNOT BE REGARDED TO BE A RETURN. IT IS AN AUDIT REPORT, WHICH IS TO BE FILED IN ACCORDANCE WITH SECTION 44AB OF THE INCOME - TAX ACT. THE AUDIT REPORT HAS TO BE SIGNED AND VERIFIED BY AN ACCOUNTANT AS DEFINED IN THE EXPLANATION BELOW SECTION 288(2). THE T AX AUDIT REPORT HAS NOT TO BE SIGNED AND VERIFIED BY THE ASSESSEE. THE TAX AUDIT REPORT CANNOT BE REGARDED, IN OUR OPINION, TO BE A RETURN FILED OR CORRESPONDENCE CARRIED OUT BY THE ASSESSEE WITH THE INCOME - TAX AUTHORITY. THUS, ON THIS BASIS, IN O UR OPINION, THE PROVISION OF SECTION 272B WILL NOT APPLY AND NO PENALTY CAN BE IMPOSED ON THE ASSESSEE. EVEN, WE NOTED U/S 273B, IT HAS BEEN PROVIDED NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, IF HE PROVES THAT THERE WAS A REASONABLE CAU SE FOR THE SAID FAILURE. THE ASSESSEE CANNOT AMEND THE AUDIT REPORT AS ISSUED BY THE ACCOUNTANT. UNDER THESE FACTS ALSO, THERE IS A REASONABLE CAUSE, BY WHICH THE ASSESSEE WAS PREVENTED TO FILL THE PAN NO. IN THE AUDIT REPORT. ON THIS BASIS ALSO, IN OUR OPINION, ITA NOS.122 TO 126/NAG/2010 BHIKULAL BACCHUBHAI PATEL AND OTHERS, YAVATMAL ETC. 4 NO PENALTY CAN BE IMPOSED. WE, THEREFORE, DELETE THE PENALTY LEVIED BY THE ASSESSING OFFICER AS CONFIRMED BY THE CIT(A), IN EACH OF THE CASE. 6 . IN THE RESULT, ALL THE APPEALS FILED BY THE RESPECTIVE ASSSESSEE ARE ALLOWED. PRONOUNCED IN THE O PEN COURT ON 16.10 .20 1 2 SD/ - SD/ - ( D.T. GARASIA ) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER VG/SPS NAGPUR DATED 16 TH OCTOBER , 20 1 2 COPY TO 1 SHRI P.M. GANDHI & CO., CHARTERED ACCOUNTANTS, TILAKWADI, YAVATMAL - 445001 2 ITO WARD - 2, YAVATMAL 3 THE CIT - 1 , NAGPUR 4 THE CIT (A) , NAGPUR 5 THE DR, ITAT, NAGPUR 6 GUARD FILE. BY ORDER SR. PRIVATE SECRET ARY INCOME TAX APPELLATE TRIBUNAL NAGPUR