Dinabandhu Ghosh, Paschim Medinipur V. CIT (APPEAL)-XXXII, KOLKATA, Kolkata

ITA 1504/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1537 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-05-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 10-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S ALLONG YADEN CIT LD
• Assessee Lawyers: K K KHEMKA LD
• Keywords: Reasonable cause

Judgement Text

1 ITA NO. 1504/KOL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA BEFORE: SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUD ICIAL MEMBER I.T.A NO. 1504/K OL/2014 A.Y: 2005- 06 DINABANDHU GHOSH VS. C.I.T (APPEALS)-XXXII, PAN: AHHPG 69996M KOLKATA [APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI K.K. KHEMKA, ADVOCATE , LD.AR FOR THE RESPONDENT : SHRI SALLONG YADEN, ADDL. C IT, LD.SR.DR DATE OF HEARING : 22-06-2017 DATE OF PRONOUNCEMENT : 13-09-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), XXXII, KOLKAT A DT. 03-03- 2014 FOR THE A.Y 2005-06, WHEREIN HE CONFIRMED THE IMPUGNED ADDITION OF RS.91,999/- 2. THE ONLY ISSUE IS TO BE DECIDED BY US AS TO WHET HER THE CIT-A JUSTIFIED IN CONFIRMING THE IMPUGNED PENALTY OF RS. 91,999/- IMPOSED U/S. 271B OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LD.AR SUBMITS THAT ASSESSEE OBTAINED 3CD/TAX AUDIT REPORT AS REQUIRED U/S. 44AB OF THE ACT ON 08-09-2005. BY MISTAKE THE ASSESSEE FILED THE SAME ALONG WITH RETURN OF INCOME ON 12-09-2005 BEFORE THE ITO, RANGE-II, MIDNAPORE INSTEAD OF JURI SDICTIONAL ITO, RANGE-1, MIDNAPORE. AGAIN IT WAS FILED BEFORE THE I TO HAVING JURISDICTION ON 28-12-2005. THE AO FOUND THAT SAID RETURN WAS DEFECTIVE AND ISSUED A NOTICE U/S. 139(9) OF THE A CT. THE ASSESSEE FILED FRESH RETURN OF INCOME ON 17-08-2016. BEFORE THE AO IN THE PENALTY PROCEEDINGS THE LD.AR OF THE ASSESSEE SUBM ITTED THAT FILING OF 2 ITA NO. 1504/KOL/2014 RETURN ALONG WITH THE TAX AUDIT REPORT WITHIN TIME SPECIFIED U/S. 44AB OF THE ACT WAS BEYOND THE CONTROL OF THE ASSESSEE, THOUGH THE TAX AUDIT REPORT WAS OBTAINED MUCH BEFORE THE SPECIFIE D DATE. THE RETURN ALONG WITH THE TAR [TAX AUDIT REPORT]/3CD W AS FILED BY MISTAKE BEFORE THE ITO, RANGE-II, MIDNAPORE ON 08-0 9-2005, WHO HAS NO JURISDICTION OVER THE ASSESSEE. THEREFORE, T HERE WAS NO WILLFUL DELAY ON THE PART OF THE ASSESSEE IN FILING THE RET URN ALONG WITH TAR/3CD IN TIME SPECIFIED U/S. 44AB OF THE ACT BEFO RE THE ITO, RANGE-I, MIDNAPORE, WHO HAS JURISDICTION OVER THE A SSESSEE. HOWEVER, THE JURISDICTIONAL AO[ITO, RANGE-1] FOUND THE SUBMISSIONS NOT ACCEPTABLE AND FOR NOT FILING THE RETURN ALONG WITH TAX AUDIT REPORT/3CD WITHIN THE SPECIFIED DATE I.E. 31-10-20 05 U/S. 44AB OF THE ACT, IMPOSED THE IMPUGNED PENALTY OF RS.91,999/ -. THIS ACTION U/S. 271B OF THE ACT WAS CONFIRMED BY THE CIT-A. 5. THE ASSESSEE FILED THE APPEAL BEFORE THE CIT-A W ITH DELAY OF OVER 10 MONTHS. THE LD.AR FURTHER SUBMITS THAT THE CIT-A DID NOT CONSIDER THE REASONS STATED IN THE DELAY CONDONATIO N PETITION FILED BEFORE HIM AND DISBELIEVING THE SAME DISMISSED THE APPEAL, WHICH IS IMPUGNED BEFORE THIS TRIBUNAL. 6. THE LD.AR OF THE ASSESSEE ARGUED THAT NON FILING OF THE TAR/3CD BEFORE THE JURISDICTIONAL AO WITHIN SPECIFIED TIME WAS BEYOND THE CONTROL OF ASSESSEE. THERE WAS SUFFICIENT REASON IN NOT FILING THE SAME IN TIME AND THE AO DID NOT CONSIDER THE SAME AND AS SUCH IMPOSED THE IMPUGNED PENALTY. HE ALSO SUBMITS THAT WITHOUT CONSIDERING THE REASONS STATED IN THE DELAY CONDONATION PETITION TH E CIT-A CONFIRMED THE ACTION OF THE AO IN IMPOSING THE SAME AND PRAYE D TO CANCEL THE SAID PENALTY AS CONFIRMED BY THE CIT-A. 7. ON THE OTHER HAND, THE LD. DR ARGUED THAT THE CO NTENTIONS OF THE ASSESSEE WERE NOT SUPPORTED BY ANY MATERIAL EVI DENCE, WHICH COULD SUGGEST THAT THERE WAS REASONABLE CAUSE IN FI LING THE RETURN 3 ITA NO. 1504/KOL/2014 ALONG WITH TAR/3CD WITH TIME SPECIFIED U/S. 4AB OF THE ACT. HE RELIED ON THE ORDERS OF THE AO AND CIT-A. 8. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE OBTAINED THE 3CD/ TAR REQUIRED U/S. 44AB OF THE ACT ON 08-09-2005. THEREAFTER, THE ASSE SSEE MISTAKENLY FILED THE SAME ALONG WITH RETURN OF INCOME BEFORE T HE ITO, RANGE-II, MIDNAPORE ON 12-09-2005, WHO HAS NO JURISDICTION OV ER THE ASSESSEE. AFTER COMING TO KNOWLEDGE THAT THERE WAS A MISTAKE IN FILING THE SAME BEFORE THE AO, THE ASSESSEE FILED THE SAME AGA IN ON 28-12- 2005 BEFORE THE ITO, RANGE-1, MIDNAPORE, WHO HAS JU RISDICTION OVER THE ASSESSEE. IT IS CLEAR THAT THE SAID MISTAKE OC CURRED IN FILING THE RETURN ALONG TAR/3CD BEFORE THE ITO, RANGE-1, MIDNA PORE DUE TO IGNORANCE OF THE ASSESSEE. THE AO DID NOT CONSIDER THE SAME. 9. IT IS CLEAR FROM THE RECORD THAT THE ASSESSEE PR EFERRED A PETITION U/S 264 OF THE ACT BEFORE THE CIT-XIX AGAINST THE O RDER OF PENALTY AND ON THE ADVICE OF CA AND LATER ON, IT WAS WITHDR AWN. AGAIN AN APPEAL WAS FILED BEFORE CIT-A,XXXVII AND WITHOUT CO NSIDERING THE REASONS STATED IN THE DELAY OF CONDONATION PETITION CONFIRMED THE IMPUGNED PENALTY, WHICH WAS NOT JUSTIFIED. WE FIND THAT THE CIT-A WHILE CONSIDERING THE ISSUE OF DELAY OF CONDONATION PETITION HELD THAT THE ASSESSEE COULD NOT PROVIDE ANY MATERIAL EVIDENC E TO SUBSTANTIATE ITS CONTENTION. WE FIND THAT THERE WAS NO CONTRARY EVIDENCE BY THE REVENUE TO THAT EFFECT THAT THE ASSESSEE COULD NOT OBTAIN THE TAR/3CD WITHIN TIME SPECIFIED U/S. 44AB OF THE ACT. THEREBY, WE ARE OF THE VIEW THAT THE ASSESSEE OBTAINED THE TAR/3CD ON 08-09-2005 AND FILED SAME ALONG WITH THE RETURN BEFORE THE AO ON 12-09-2005 AFTER THE SPECIFIED DATE US/44AB OF THE ACT. IT CLE ARLY SHOWS THAT THE TAR/3CD WAS AVAILABLE BEFORE THE AO IRRESPECTIVE OF RESPECTIVE ITOS JURISDICTION. WE FIND THAT THERE WAS NO DELIBERATE OR WILLFUL ACT ON THE PART OF THE ASSESSEE WHICH ATTRACTS THE PROVISIONS OF SECTION 271B OF THE ACT FOR IMPOSITION OF PENALTY ON SUCH FAILURE O F THE ASSESSEE. WE FIND THAT THERE WAS SUFFICIENT REASON IN NOT FILING THE SAME BEFORE THE 4 ITA NO. 1504/KOL/2014 RESPECTIVE AO [ITO, RANGE-1, MIDNAPORE, WITHIN TIME . THE DELAY IN FILING THE SAME BEFORE THE JURISDICTIONAL ITO WAS C AUSED DUE TO SAID MISTAKE AND IGNORANCE OF ASSESSEE OVER JURISDICTION OF ITO. THEREFORE, WE CANCEL THE SAID PENALTY OF RS. 91,999 /-IMPOSED U/S. 271B OF THE ACT BY THE AO AND CONFIRMED BY THE CIT- A. THE SAME IS HEREBY CANCELLED. THEREFORE, THE GROUNDS RAISED BY THE ARE LIABLE TO BE ALLOWED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13-0 9-2017 SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :13-09-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/ASSESSEE: SHRI DINABANDHU GHOSH PROP: MAA GOPNANDININ TRADING, RANGAMADIT, P.O VIDYASAGAR UNIVERSITY, DIS T: PASCHIM MIDNAPORE. 2 RESPONDENT/DEPARTMENT: THE COMMISSIONER OF INCOME-T AX (APPEALS), XXXII, 54/1 RAFI AHMED KIDWAI ROAD, KOLKATA-700016. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA