Sh. Prithvi Raj Jairath Prop. Jairath Dyeing & Finishing Mills, Ludhiana V. ITO, W-3(4), Ludhiana

ITA 1301/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5373 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 01-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN DESH

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1301/CHD/2017 ASSESSMENT YEAR: 2012-13 M/S JAIRATH DYEING & FINISHING MILLS, VS. THE ITO, WARD 3(4) PROP PRITHAVI RAJ JAIRATH, LUDHIANA NOORWALA ROAD, LUDHIANA PAN NO. AEXPJ8154M (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ANIL JAIN RESPONDENT BY : SH. KIRAN DESH PANDE DATE OF HEARING : 03.01.2018 DATE OF PRONOUNCEMENT : 03.01.2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 18.6.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-2, [HEREINAFTER REFERRED TO AS CIT(A)], LUDHIANA 2. THE ASSESSEE IS AGGRIEVED BY THE ACTION OF THE C IT(A) IN CONFIRMING THE LEVY OF PENALTY U/S 271B OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 3. THE ASSESSING OFFICER LEVIED THE IMPUGNED PENALT Y FINDING THAT THE ASSESSEE HAS NOT FURNISHED THE AUDIT REPORT ALONG W ITH RETURN OF INCOME 2 FILED. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMIT TED THAT THE AUDITOR REPORT WAS FIELD BEFORE THE ASSESSING OFFICER ON 25 .9.2012 I.E. BEFORE THE DUE DATE OF FILING OF THE RETURN HOWEVER, LD. CIT( A) OBSERVED THAT THOUGH THE REPORT WAS OBTAINED ON 25.9.2012 BUT IT WAS NOT EVIDENT THAT THE SAME WAS FILED ON THE SAID DATE. HE OBSERVED THAT EVEN I N THE RECEIPT LETTER, DATE OF RECEIPT WAS MENTIONED AS 25.9.2017. HOWEVER, SH E AGREED THAT THE SAME APPEARS TO BE CLERICAL MISTAKE AS DATED 25.09.2017 WAS A FUTURE DATE AS ON THE DATE OF HEARING BEFORE THE CIT(A). HOWEVER, SHE OBSERVED THAT ASSESSEE HAD NOT FURNISHED ANY SATISFACTORY EXPLANATION FOR NOT FURNISHING THE AUDIT REPORT ALONGWITH THE RETURN OF INCOME IN RESPONSE TO THE NOTICE ISSUED U/S 271B OF THE ACT BY THE ASSESSING OFFICER. SHE DISBE LIEVED THE CONTENTION OF THE ASSESSEE THAT THE REPORT WAS FIELD WITH THE ASS ESSING OFFICER ON 25.9.2012. 4. BEFORE US, THE LD. AR OF THE ASSESSEE HAS RELIED UPON THE CBDT CIRCULAR NO. 03 / 2009 DATED 21.5.2009, MORE SPECIF ICALLY THE PARA 7 (I) OF THE SAID CIRCULAR, WHICH READS AS UNDER;- (I) AN ASSESSEE SHOULD OBTAIN THE REPORT OF AUDIT FROM AN ACCOUNTANT UNDER SECTION 44AB OF THE ACT ON OR BEFO RE THE DUE DATE OF THE FURNISHING OF THE RETURN AND SHOULD FILL OUT THE RELEVANT COLUMNS OF THE RETURN FORMS ON THE BAS IS OF SUCH REPORT. HOWEVER, THE REPORT OF AUDIT SHOULD NO T BE ATTACHED WITH THE RETURN OR FURNISHED SEPARATELY AN Y TIME BEFORE OR AFTER THE DUE DATE. THE ASSESSEE SHOULD R ETAIN THE REPORT WITH HIMSELF. IF CALLED FOR BY ANY INCOM E-TAX AUTHORITY DURING ANY PROCEEDING UNDER THE ACT, IT S HALL BE INCUMBENT UPON THE ASSESSEE TO FURNISH/PRODUCE THE SAME IN ORIGINAL. NO PENALTY UNDER 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 RE PORT HAS 3 NOT BEEN OBTAINED BEFORE THE DUE DATE, PROVISIONS O F SECTION 271B SHALL CONTINUE TO BE ATTRACTED. HE, THEREFORE, HAS SUBMITTED THAT IN VIEW OF THE A BOVE CIRCULAR, THE ASSESSEE WAS NOT SUPPOSED TO FILE OR SEND THE AUDIT REPORT TO THE ASSESSING OFFICER UNTIL AND UNLESS THE SAME IS CALLED FOR BY THE INCOME TAX AUTHORITIES DURING THE PROCEEDINGS UNDER THE I.T. A CT. HE HAS FURTHER SUBMITTED THAT AUDIT REPORT HAS BEEN OBTAINED, AS HAS ALSO BEEN OBSERVED BY LD. CIT(A), ON 25.9.2012 I.E. WITHIN DUE DATE. T HE LD. COUNSEL FOR THE ASSESSEE HAS ALSO PLACED ON RECORD THE COPY OF THE ASSESSMENT ORDER, WHEREIN IN THE OPENING LINES OF THE ASSESSMENT ORD ER, THE ASSESSING OFFICER HAS REPORTED THAT ALL THE RELEVANT DOCUMENTS, REPLI ES TO THE QUERIES, BOOKS OF ACCOUNT, EXPENDITURE VOUCHERS ETC. HAVE BENE PLA CED ON RECORD. THERE IS NO MENTION IN THE ASSESSMENT ORDER THAT THE ASSESSI NG OFFICER HAD CALLED FOR THE AUDITOR REPORT BUT THE ASSESSEE HAD FAILED TO PRODUCE THE SAME IN THE ASSESSMENT PROCEEDINGS. THE ONLY ALLEGATION WAS TH AT THE SAID AUDIT REPORT WAS NOT FILED ALONGWITH RETURN OF INCOME, WHICH AS PER CBDT CIRCULAR WAS NOT REQUIRED TO BE ATTACHED. 5. IN VIEW OF THIS, WE DO TO FIND ANY JUSTIFICATION ON THE PART OF THE ASSESSING OFFICER FOR LEVY OF THE PENALTY, THE SAME IS ACCORDINGLY ORDERED TO BE DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DR. B.R.R. KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.2018 4 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR