Gyandeo Mishra, Navi Mumbai V. Income-tax Officer,

ITA 1381/PUN/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1477 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 26-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Keywords: Reasonable cause
• Section: 273B; 27

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO.1381/PN/2015 % % / ASSESSMENT YEAR : 2008-09 SHRI GYANDEO MISHRA, B/6/1/3, ASHTAVINAYAK CHS, SECTOR -5, KALAMBOLI, NAVI MUMBAI- 410 218 PAN NO.AGHPM0263E . / APPELLANT V/S ITO, WARD-2, PANVEL . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI ANIL CHAWARE / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 21-08-2015 OF THE CIT(A)-II, THANE RELATING TO THE ASSESSMENT YEAR 2008-09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 14-05-2009 DECLARING TOTA L INCOME OF RS.2,83,810/-. WHILE PROCESSING THE RETURN U/S.143(1) ON 30- 03-2011 IT WAS NOTICED BY THE AO THAT THE GROSS RECEIPTS OF THE ASSESSEE WAS RS.69,53,423/- AND THE ASSESSEE WAS REQUIRED TO GET HIS ACCOUNTS AUDITED U/S.44AB AND FURNISH THE AUDIT REPORT BEFORE THE SPECIFIED DATE, I.E. 30-09-2008. HOWEVER, THE ASSESSEE HAD FILED HIS R ETURN OF / DATE OF HEARING :27.07.2016 / DATE OF PRONOUNCEMENT:29.07.2016 2 ITA NO.1381/PN/2015 INCOME ON 14-05-2009 ALONG WITH THE AUDIT REPORT IN THE PRESCRIBED FORM. SINCE THERE WAS A DEFAULT IN TERMS OF PROVISIONS OF S ECTION 44AB THE AO INITIATED PENALTY PROCEEDINGS U/S.271B OF THE I.T. A CT AND ASKED THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY U/S.271B SHOU LD NOT BE LEVIED. INITIALLY, THE ASSESSEE NEITHER ATTENDED NOR FILED AN Y WRITTEN SUBMISSION. WHEN THE AO ISSUED FURTHER NOTICE, IT WAS REPLIE D BY THE ASSESSEE THAT HIS MOTHER WHO STAYS AT UTTAR PRADESH IS UNDER BED-REST SINCE LAST 4 YEARS AS SHE IS SUFFERING FROM SEVERE DISEASES . HE HAS TO VISIT HER TWICE IN A MONTH TO LOOK AFTER HER. HE, THEREFORE , COULD NOT GET HIS ACCOUNTS AUDITED BY THE AUDITOR BEFORE THE SPECIFIED DATE. THIS IS THE REASONABLE CAUSE FOR FILING THE RETURN OF INCOME LATE AN D OBTAINING THE AUDIT REPORT ALSO LATE. 3. HOWEVER, THE AO DID NOT CONSIDER THE SAME TO BE A R EASONABLE CAUSE FOR NOT GETTING THE ACCOUNTS AUDITED BEFORE THE S PECIFIED DATE. HE, THEREFORE, LEVIED PENALTY OF RS.34,787/- BEING HALF PERCENT OF THE TOTAL RECEIPT OF RS.69,53,433/. 4. IN APPEAL THE LD.CIT(A) ALSO UPHELD THE PENALTY LEVIED BY THE AO ON MERITS AS WELL AS DUE TO DELAY IN FILING OF THE APPEAL B Y 3 DAYS FOR WHICH NO EXPLANATION WAS OFFERED. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE APPEAL OF THE A SSESSEE WAS NO T MAINTAINABLE AGAINST L EVY OF PENALTY UNDER S. 271-B OF THE ACT . THE PENALTY LEVIED UNDER S. 271-B BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W THE PENALTY WAS NOT LEVIABLE UNDER S. 271-B OF THE ACT . THE ASSESSEE'S CASE WAS GOVERNED BY 273B OF THE ACT AS REASONABLE CAUSE WAS PLE ADED BEFORE CIT(A) THAT THE ACCOUNTS COULD NOT BE AUDITED DUE TO IL L NESS OF THE MOTHER. THE LD. CIT(A) WAS NOT JUSTIFIED TO OBSERVE T H AT THE ILLNESS OF THE MOTHER 3 ITA NO.1381/PN/2015 CANNOT COME IN THE WAY OF AUDIT OF ACCOUNTS. THE OBSE RVATIONS OF THE LD. CIT(A) CANNOT BE SUSTAINED ON HUMAN PROBABIL I TIES. THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE PENALTY LEVIED U/S 271-B B E DELETED CONSIDERING THE - R EASONABLE CA U S E UN DER S . 2 7 1B O F THE AC T . 3. THE APPELLANT CRAVES TO LEAVE, ADD/AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL . 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MOTHER OF THE ASSESSEE WAS NOT KEEPING WELL SINCE LAST 4 YEARS AND THE ASSESSEE USED TO GO TO UTTAR PRADESH TWICE IN EVERY MONTH TO LO OK AFTER HIS MOTHER. THEREFORE, THERE WAS A REASONABLE CAUSE IN NOT GETTING THE ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE AND FURNISH THE SAME. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) BE RE VERSED AND THE PENALTY BE DELETED. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND WHILE SUPPORTING THE ORDER OF THE CIT(A) SUBMITTED THAT THERE WAS A DELAY OF 3 DAYS IN FILING OF THE APPEAL BEFORE THE CIT(A) AND NO REASON ABLE CAUSE HAS BEEN GIVEN NOR ANY CONDONATION PETITION WAS FILED BEFOR E THE CIT(A). FURTHER, THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSE E THAT THE MOTHER OF THE ASSESSEE WAS NOT KEEPING WELL AND THE ASS ESSEE HAD TO GO TWICE IN A MONTH TO UTTAR PRADESH TO LOOK AFTER HER IS A GENERAL STATEMENT WITHOUT ANY JUSTIFIABLE REASONS. THE BUSINESS O F THE ASSESSEE HAS NOT HAMPERED. HE ACCORDINGLY SUBMITTED THAT TH E ORDER OF THE CIT(A) CONFIRMING THE PENALTY LEVIED BY THE AO U/S.271B OF THE I.T. ACT BE UPHELD. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIO US DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT TH E ASSESSEE IS LIABLE TO GET HIS ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE SINCE HIS 4 ITA NO.1381/PN/2015 TURNOVER EXCEEDS THE PRESCRIBED LIMIT OF RS.40 LAKHS. WE FIN D THE SPECIFIED DUE DATE IN THE INSTANT CASE FOR GETTING THE A CCOUNTS AUDITED WAS 30-09-2008 WHEREAS THE ASSESSEE GOT HIS ACCOUNTS AUDITED ON 31-12-2008 AND FILED THE RETURN OF INCOME ON 14-05-2009 ALONG WITH THE AUDIT REPORT IN THE PRESCRIBED FORM. THE ASSESSEE HAS NOT FURNISHED THE AUDIT REPORT ON OR BEFORE 30-09-2008. UND ER THESE CIRCUMSTANCES AND IN ABSENCE OF ANY REASONABLE CAUSE T HE AO LEVIED PENALTY OF RS.34,767/- U/S.271B WHICH HAS BEEN UPHELD BY THE LD.CIT(A). THE CIT(A) HAS ALSO GIVEN A FINDING THAT THERE WAS NO REASON GIVEN BY THE ASSESSEE FOR DELAY IN FILING OF THE APPEAL BY 3 DAYS BEFORE HIM. 9. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESS EE THAT SINCE THE MOTHER OF THE ASSESSEE WAS NOT KEEPING WELL AN D IS STATIONED AT UTTAR PRADESH THE ASSESSEE HAD TO TRAVEL TWICE IN A MONTH TO HIS HOME TOWN IN UTTAR PRADESH TO LOOK AFTER HIS MOTHER. T HEREFORE, THERE WAS DELAY IN GETTING THE ACCOUNTS AUDITED AND THEREFORE THIS BEING A REASONABLE CAUSE UNDER THE PROVISIONS OF SECTION 273B TH E PENALTY SHOULD BE DELETED. 10. WE DO NOT FIND ANY MERIT IN THE ABOVE ARGUMENT OF TH E LD. COUNSEL FOR THE ASSESSEE. AS STATED IN THE REPLY TO TH E AO THE ASSESSEE HAS STATED THAT THE MOTHER OF THE ASSESSEE WAS OLD AN D NOT KEEPING WELL FOR WHICH THE ASSESSEE HAS TO TRAVEL TWICE IN A MONTH TO HIS HOME TOWN IN UTTAR PRADESH. HOWEVER, IT IS ALSO A FACT THAT D ESPITE ALL THESE THE BUSINESS OF THE ASSESSEE IS NOT AFFECTED AND IT IS RUN NING SMOOTHLY. THEREFORE, THE ARGUMENT OF THE ASSESSEE THAT THERE WAS A REASONABLE CAUSE FOR NOT GETTING THE ACCOUNTS AUDITED BEFORE THE S PECIFIED DATE DOES NOT CARRY ANY FORCE. NO OTHER REASON HAS BEEN GIVEN BY THE LD. 5 ITA NO.1381/PN/2015 COUNSEL FOR THE ASSESSEE AS TO WHAT ARE THE PRESSING C IRCUMSTANCES FOR WHICH ASSESSEE WAS UNABLE TO GET HIS ACCOUNTS AUDITED B EFORE THE SPECIFIED DATE. THE LD. COUNSEL FOR THE ASSESSEE ALSO COUL D NOT GIVE ANY REASON AS TO WHY THERE WAS A DELAY OF 3 DAYS IN FILING OF THE APPEAL BEFORE THE CIT(A). EVEN IF THE DELAY IS VERY SMALL AND CAN B E CONDONED, HOWEVER, AS OBSERVED EARLIER THE ASSESSEE HAS NOT MADE OUT A CASE SO AS TO FALL UNDER THE PROVISIONS OF SECTION 273B, I.E. REASONAB LE CAUSE FOR NOT GETTING THE ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE. IN THIS VIEW OF THE MATTER, WE UPHOLD THE ORDER OF THE CIT(A) AND THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29-07-2016. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 29 TH JULY , 2016. LRH'K ' (*+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. % ( ) - THE CIT(A)-II, THANE 4. % S / THE CIT-II, THANE 5. ( ++, , , , IQ.KS / DR, ITAT, A PUNE; 6. 0 / GUARD FILE. / BY ORDER , ( + //TRUE COPY// 23 + , / SR. PRIVATE SECRETARY ,, IQ.KS / ITAT, PUNE