M/s Shri Shivjot Developers & Builders Ltd., Kharar V. ITO, W-6(5), Mohali

ITA 1330/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6528 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 22-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: B M MONGA SH ROHIT KAURA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO.1330/CHD/2018 ASSESSMENT YEAR: 2014-15 M/S SHRI SHIVJOT DEVELOPERS & VS. THE ITO, W-6(5 ) BUILDERS LTD . MOHALI, PUNJAB OPP. COURT COMPLEX, SHIVJOT ENCLAVE, KHARAR PUNJAB PAN NO. AAJCS4811P (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. B.M. MONGA, ADVOCATE SH. ROHIT KAURA, ADVOCATE REVENUE BY : SH. MANJIT SINGH, SR. DR DATE OF HEARING : 21/02/2019 DATE OF PRONOUNCEMENT : 21/02/2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 06/08/2018 OF LD. CIT(A)-2, CHANDIGARH. 2. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT THE ORDER OF LD. CIT(A) IS AGAINST THE LAW AND FACTS OF THE CASE. 2. THAT THE LEARNED CIT(A), IS NOT JUSTIFIED IN UPHOLD ING THE ORDER OF LD. AO WITHOUT APPRECIATING THE FACT THAT ASSESSEE HAD COM PLIED THE PROVISIONS OF SECTION 44AB AND HAD DULY E-FILED/FURNISHED THE AUD IT REPORT IN FORM NO. 3CA VIDE E-FILLING ACKNOWLEDGMENT NO. 432930841301114 D ATED 30.11.2014. 3. THAT THE LEARNED CIT(A) AS WELL AS THE AO HAS ERRED WHILE IMPOSING THE PENALTY U/S 271B OF THE ACT WITHOUT VERIFYING THAT THE APPELLANT-ASSESSEE HAS DULY COMPLIED WITH THE PROVISIONS OF SECTION 44AB AS AUD IT WAS DONE ON 25.08.2014 AND DULY SUBMITTING/E-FILLING/ FURNISHING THE AUDIT REPORT BEFORE DUE DATE. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD AND DISPOSED OFF . 3. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE SUSTENANCE OF PENALTY LEVIED BY THE ASSESSING OFFIC ER UNDER SECTION 271B OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS A CT). 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IS A BUILDER AND DEVELOPER OF PROPERTY HAVING A TURNOVER OF RS. 10,99,68,405/- FOR THE YEAR UNDER CONSIDERATION. 5. THE ASSESSING OFFICER DURING THE COURSE OF ASSES SMENT PROCEEDINGS NOTICED THAT THE ASSESSEE FILED THE RETURN OF INCOM E ALONGWITH AUDIT REPORT ON 2 05/02/2015 WHILE THE SPECIFIED DATE FOR FILING THE AUDIT REPORT WAS 30/11/2014. THE ASSESSING OFFICER LEVIED THE PENALTY OF RS. 1,5 0,000/- UNDER SECTION 271B OF THE ACT. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFIC ER. 7. NOW THE ASSESSEE IS IN APPEAL. 8. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THER E WAS NO FAULT OF THE ASSESSEE SINCE THE TAX AUDIT REPORT WAS E-FILED ON 30/11/2014, HE FURNISHED THE COMPUTER GENERATED ACKNOWLEDGMENT RECEIPT WHICH IS PLACED AT PAGE NO. 1 OF THE ASSESSEES PAPER BOOK. IT WAS FURTHER SUBMIT TED THAT NEITHER THE ASSESSING OFFICER NOR THE LD. CIT(A) APPRECIATED THE FACTS IN RIGHT PERSPECTIVE. 9. IN HIS RIVAL SUBMISSION THE LD. DR STRONGLY SUPP ORTED THE ORDER OF THE AUTHORITIES BELOW. 10. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES AND THE MATERIAL AVAILABLE ON THE RECORD, I AM OF THE VIEW THAT THIS FACT REQUIRES VERIFICATION AS TO WHETHER THE ASSESSEE E-FILED TAX AUDIT REPORT WITH IN THE SPECIFIED TIME LIMIT OR NOT. THEREFORE, THIS ISSUE IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW BY PROVID ING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSE. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 21/02/2019. ) SD/- (N.K. SAINI) VICE PRESIDENT PLACE: CHANDIGARH DATED : 21/02/2019 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR