The ITO, Ward-3(4), JAMNAGAR V. Shri Shailendra Verma, Jam-Khambhalia

ITA 164/RJT/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1086 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE SHRI SHAILEND RA K UMAR YADAV, JUDICIAL MEMBER, AND SHRI N. S. SAINI , ACCOUNTANT MEMBER . ITA. NO. 164 / RJT /20 14 (ASSESSMENT YEAR: 200 9 - 1 0 ) INCOME - TAX OFFICER, WARD - 3 ( 4 ), J AMN AGAR APPELLANT VS. SH SHAILENDRASINHVERMA , DEVELOPMENT OFFICER, LIC, VINAK COMPLEX, STATION ROAD, JAM KHAMBHALIYA RESPONDENT PAN: ABEPV0692C / BY APPELLANT : SHRI AVINASH KUMAR , D.R. / BY RESPONDENT : WRITTEN SUBMISSION / DATE OF HEARING : 2 8 . 0 5 .2015 / DATE OF PRONOUNCEMENT : 29 . 0 5 .201 5 I T A NO. 164 / RJT / 1 4 A.Y. 200 9 - 1 0 [ IT O VS. SH SHAILENDRASINH VERMA ] PAGE 2 ORDER PER SHAILENDRA KUMAR YADAV, J.M: TH I S APPEAL HAS BEEN FILED BY REVENU E AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) , JAMNAGAR , DATED 1 1 . 1 2 . 20 1 3 FOR A.Y. 200 9 - 1 0 ON THE FOLLOWING GROUND . 1. T HE LD. CIT(A) HAS ERRED O N FACTS AND LAW BY CANCELLING THE PENALTY U/S.271B OF RS.1,00,000/ - LEVIED BY THE ASSESSING OFFICER. 2. ASSESSEE IS DEVELOPMENT OFFICER IN LIFE INSURANCE CORPORATION OF INDIA. DURING COURSE OF ASSESSMENT PROCEEDINGS FROM SCRUTINY OF BANK ACCOUNT, IT WAS NOTICED THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF SHARE TRANSACTIONS, HOWEVER, ASSESSEE HAS NOT FURNISHED THE DETAILS CALLED FOR U/S.142(1) IN RESPECT OF HIS BUSINESS OF SHARE TRANSACTIONS. THEREFORE, INFORMATION WAS CALLED FOR U/S.133(6) OF THE ACT F ROM M/S. ASIT C. MEHTA INVESTMENT INTERMEDIATES LTD., MUMBAI AND AS PER INFORMATION FURNISHED BY SAID COMPANY, TOTAL SALES/TURNOVER OF ASSESSEE DURING YEAR WAS OF RS.7,17,06,413/ - (WHICH WAS MORE THAN RS.40 LAKHS). SINCE SALES/TURNOVER EXCEEDING RS.40 LAK HS, ASSESSEE WAS UNDER OBLIGATION TO GET HIS ACCOUNTS AUDITED AND TO FILE AUDIT REPORT IN PRESCRIBED PERFORMA BEFORE DUE DATE I.E. 30.09.2009 AS REQUIRED U/S. 44AB OF THE ACT. HOWEVER, ASSESSEE FAILED TO DO SO. SINCE, ASSESSEE FAILED TO COMPLY WITH THE S TATUTORY PROVISIONS OF THE ACT PENALTY PROCEEDINGS U/S. 271B HAVE BEEN INITIATED BY ISSUING NOTICE U/S.271B ASKING ASSESSEE TO SHOW I T A NO. 164 / RJT / 1 4 A.Y. 200 9 - 1 0 [ IT O VS. SH SHAILENDRASINH VERMA ] PAGE 3 CAUSE AS TO WHY PENALTY OF RS.1,00,000/ - U/S. 271B SHOULD NOT BE IMPOSED. ASSESSEE FAILED TO COMPLY WITH SHOW CAUSE NOTICE ISSUED U/S.271B AND HE FAILED TO ESTABLISH THAT THERE WAS A REASONABLE CAUSE FOR SAID FAILURE. ASSESSING OFFICER LEVIED PENALTY OF RS.1,00,000/ - U/S.271B OF THE ACT. 2 . 1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY , WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF ASSESSEE AND HAVING CONSIDERING THE SAME, CIT(A) DELETED THE SAME. SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE INTER ALIA SUBMITTING THAT CIT(A) ERRED IN CANCELLING PENALTY U/S.271B OF RS.1,00,000/ - LEVIED BY ASSESSING O FFICER. ACCORDINGLY, ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. ON OTHER HAND LEARNED AUTHORIZED REPRESENTATIVE FILED WRITTEN SUBMISSIONS BEFORE US. SO, MATTER IS BEING DECIDED ON THE BASIS OF ARGUMENTS OF LEARNED DEPARTMENT AL REPRESENTATIVE, MATERIAL ON RECORD INCLUDING WRITTEN SUBMISSION ON BEHALF OF ASSESSEE. 2 . 2 AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT ASSESSING OFFICER HAS LEVIED PENALTY BECAUSE ASSESSEE FAILED TO GET HIS ACCOUNTS AUDIT ED. ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNTS. WE FIND THAT HON BLE ALLAHABAD HIGH COURT IN CASE OF CIT VS. BISAULI TRACTORS [2008] 299 ITR 219 (ALL.) HAS HELD THAT SECTION 271B IS NOT ATTRACTED IN A CASE WHERE ASSESSEE HAS NOT MAINTAINED ANY BOO KS OF ACCOUNTS AND RECOURSE U/S.271A CAN BE TAKEN. I T A NO. 164 / RJT / 1 4 A.Y. 200 9 - 1 0 [ IT O VS. SH SHAILENDRASINH VERMA ] PAGE 4 IN VIEW OF ABOVE, WE ARE NOT INCLINED TO INTERFERE IN THE FINDING OF CIT(A) WHO HAS DELETED PENALTY IN QUESTION AS DISCUSSED ABOVE. 3 . IN THE RESULT, APPEAL FILED BY REVENU E IS DISMISSED . PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH D AY OF MA Y , 201 5 . SD/ - SD/ - (N. S. SAINI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT : DATED 29 / 0 5 /2015 TRUE COPY S K SINHA COPY OF THE ORDER F ORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, RAJKOT . 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJ KOT