M/s. Singh Construction Corporation, Durgapur V. Add. CIT, Range - 2, Durgapur, Durgapur

ITA 1652/KOL/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7919 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 02-12-2011
• Court: TRIBUNAL
• Department Lawyers: P K CHAKRABORTY
• Assessee Lawyers: U DASGUPTA
• Section: 143(3); 144

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND ! ' ! ! ' ! ! ' ! ! ' ! , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] # # # # / I.T.A NO. 1652/KOL/2011 '$% &' '$% &' '$% &' '$% &'/ // / ASSESSMENT YEAR : 2007-08 M/S. SINGH CONSTRUCTION CORPORATION VS. ADDL. COM MISSIONER OF INCOME-TAX, (PAN: ABJFS8820N) RANGE-2, DURGAPUR ()* /APPELLANT ) (+)*/ RESPONDENT ) FOR THE APPELLANT: SHRI U. DASGUPTA FOR THE RESPONDENT: SHRI P. K. CHAKRABORTY DATE OF HEARING: 02.08.2012 DATE OF PRONOUNCEMENT: 09.08.2012 , / ORDER PER MAHAVIR SINGH, JM ( ! ' ! ! ' ! ! ' ! ! ' !, , , , ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), DURGAPUR, IN APPEAL NO. 07/CIT(A)/DGP/2010-11 DATED 13.09.2011. ASSESSMENT WAS FRAMED BY ADDL. CIT, RANGE-2, DURGAPUR U/S.143(3) OF THE INCOME TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE HIS ORDER DATED 31.12 .2009. PENALTY WAS LEVIED BY ADDL. CIT, RANGE-2, DURGAPUR U/S. 271B OF THE ACT VIDE HIS ORD ER DATED 18.05.2010. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE LEVY OF PENALTY U/S. 271B OF THE ACT. FOR THIS, AS SESSEE HAS RAISED FOLLOWING GROUND NO.1: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE A PPEAL CASE, THE LD. CIT(A),DURGAPUR HAS ERRED ON FACTS AND IN LAW IN DISMISSING THE APP EAL BEFORE HIM AGAINST UNJUSTIFIED IMPOSITION OF PENALTY U/S. 271B BY ADDL. CIT, RANGE -2, DURGAPUR. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEA R FILED RETURN OF INCOME THROUGH ELECTRONICALLY I.E. E-FILING. THE ASSESSEE FIRM IS FALLING WITHIN THE PURVIEW OF SECTION 44AB OF THE ACT AND FOR EARLIER YEARS IT WAS GETTING THE AC COUNTS AUDITED. DUE DATE OF FILING OF RETURN WAS EXTENDED UP TO 15.11.2007 BUT EVENTUALLY, THE A SSESSEE FILED RETURN OF INCOME ON 14.11.2007. AS THE ASSESSEE FILED RETURN ELECTRONI CALLY IT IS NOT POSSIBLE TO ATTACH THE AUDITED 2 ITA 1652/K/2011 M/S. SINGH CONSTRUCTION CORPORATIO N A.Y. 07-08 STATEMENT OF ACCOUNTS, AUDIT REPORT IN FORM NO. 3CB AND 3CD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO DID NOT ASK FOR AUDI TED STATEMENT OF ACCOUNTS BUT ONLY ASKED TO PROVE THE EXPENSES CLAIMED. THE ASSESSEE LATER ON FILED P&L ACCOUNT, BALANCE SHEET I.E. COPIES OF AUDITED ACCOUNTS. THE AO NEVER REQUIRED THE ASSESSEE TO FILE AUDIT REPORT AND ASSESSMENT WAS FRAMED. THE AO INITIATED PENALTY PR OCEEDINGS U/S. 271B OF THE ACT. THE ASSESSEE WAS REQUIRED TO FILE AUDIT REPORT U/S. 44A B OF THE ACT, WHICH WAS SUBMITTED DURING THE PENALTY PROCEEDINGS. THE ASSESSEE STATED THAT FOR AY 2007-08, ASSESSEE GOT THE ACCOUNTS AUDITED BY A C. A FIRM VIZ., HAZRA & DHAR, CHARTERE D ACCOUNTANTS AND OBTAINED AUDIT REPORT U/S. 44AB OF THE ACT IN FORM NO. 3CB AND 3CD DATED 30.10.2007. ACCORDING TO ASSESSEE, IT HAS COMPLIED THE PROVISIONS OF SECTION 44AB OF THE ACT AND, THEREFORE, REQUESTED THE AO TO DROP THE PENALTY PROCEEDINGS. BUT THE AO HAS NOT A CCEPTED THE PLEA OF THE ASSESSEE FOR THE REASON THAT THE ASSESSEE COULD NOT PRODUCE THE ORIG INALS OF AUDIT REPORT DURING THE ASSESSMENT PROCEEDINGS AND EVEN THERE IS A DIFFERENCE IN THE L IST OF CREDITORS AS AUDITED BY CHARTERED ACCOUNTANTS FIRM. THE CIT(A) SIMPLY DISPOSED OF TH E ISSUE BY DISMISSING THE ASSESSEES APPEAL BY STATING AS UNDER: IN THIS GROUND THE APPELLANT IS DISPUTING THE AOS ACTION IN LEVYING PENALTY U/S. 271B. THE FACTS OF THE CASE ARE THAT REPORT U/S. 44AB WAS NOTFURNISHED BY THE APPELLANT WITHIN THE PRESCRIBED TIME. THE A.O. CONSEQUENTLY LEVIED PENALTY U/S. 271B. THE APPELLANTS CASE IS THAT, THE RETURN WAS E-FILED AND, THEREFOR E, THERE WAS NO SCOPE FOR ATTACHMENT OF AUDIT REPORT, WHICH IS CLAIMED, TO HAVE BEEN OBTAIN ED IN TIME. HOWEVER, ISSUE OF E-FILING HAS NOTHING TO DO WITH THE SUBMISSION OF THE AUDIT REPORT. THE OPERATIVE WORD IN THE SECTION IS FURNISH. SUCH FURNISHING OF THE AUDIT REPORT HAS TO BE DONE WITHIN THE DATES SPECIFIED IN THE ACT. IN THIS CASE, THIS HAS CLEAR LY NOT BEEN DONE. UNDER THE CIRCUMSTANCES, THE LEVY OF PENALTY IS UPHELD AND TH IS GROUND OF APPEAL IS DISMISSED. 4. WE FIND THAT NOW THE CENTRAL BOARD OF DIRECT TAX ES VIDE CIRCULAR NO.5/2007 DATED 26.07.2007 HAS DONE AWAY WITH THE REQUIREMENT OF FU RNISHING OF AUDIT REPORT AS OBTAINED U/S. 44AB OF THE ACT IN THE CASES, WHERE RETURN OF INCOM E IS FILED ELECTRONICALLY. THE RELEVANT CLARIFICATION ISSUED IN PARA 6 (I) AND (II) ARE AS UNDER: (I) THE REPORT OF AUDIT UNDER SECTION 44AB IS NOT TO BE ATTACHED WITH THE RETURN. IT SHOULD NOT BE FURNISHED SEPARATELY ALSO BEFORE OR A FTER THE DUE DATE. HOWEVER, AN ASSESEE SHOULD GET THE REPORT OF AUDIT FROM AN ACCO UNTANT UNDER SAID SECTION BEFORE THE DUE DATE OF THE FURNISHING OF THE RETURN AND SHOULD FILL OUT THE RELEVANT COLUMNS OF THESE FORMS ON THE BASIS OF SUCH REPORT. THE ASSESSEE SH OULD RETAIN THE REPORT WITH HIMSELF. IT MAY BE FURNISHED IN ORIGINAL DURING THE ASSESSMENT PROCEEDINGS. NO PENALTY UNDER SECTION 271B SHALL BE INITIATED OR LEVIED FOR NOT F URNISHING THE TAX AUDIT REPORT ON OR BEFORE THE DUE DATE. HOWEVER, IF THE AUDIT REPORT HAS NOT BEEN OBTAINED BEFORE THE DUE DATE, PROVISIONS OF SECTION 271B SHALL BE ATTRACTED . (II) THESE RETURNS ARE NOT TO BE ACCOMPANIED WITH A NY OTHER DOCUMENT INCLUDING ANY STATUTORY FORM OR REPORT OF AUDIT (OTHER THAN THE R EPORT UNDER SECTION 92E) WHICH IS OTHERWISE REQUIRED TO BE FURNISHED BEFORE THE DUE D ATE OR ALONG WITH THE RETURN FOR 3 ITA 1652/K/2011 M/S. SINGH CONSTRUCTION CORPORATIO N A.Y. 07-08 MAKING ANY CLAIM. THE PROVISIONS OF THE LAW SHALL B E DEEMED TO HAVE BEEN COMPLIED WITH IN RESPECT OF THE REQUIREMENT OF THE FILING O F THE ATTACHMENTS OR DOCUMENTS OR REPORTS ALONG WITH THE RETURN. NO PENALTY SHALL BE INITIATED/LEVIED FOR NOTFURNISHING SUCH DOCUMENTS IF SUCH DOCUMENTS WERE OTHERWISE OBTAINED BEFORE THE SPECIFIED DATE, IF ANY, PROVIDED IN THE STATUTE. ALL THESE DOCUMENTS SHOUL D BE RETAINED BY THE TAX PAYERS AND BE FURNISHED IN ORIGINAL DURING THE SCRUTINY PROCEEDIN GS. 5. WE LFIND FROM THE ASSESSMENT ORDER ABOVE AND THE RELEVANT CLARIFICATION ISSUED BY CIRCULAR NO. 5/2007 THAT IN CASE OF ELECTRONICALLY FILED RETURN THE ASSESSEE HAS TO SUBMIT AUDIT REPORT DURING ASSESSMENT PROCEEDINGS. BUT THE ASSE SSMENT ORDER IS SILENT QUA THIS AND THERE IS NO WHISPER THAT ASSESSEE WAS REQUIRED TO FILE AUDIT REPORT. EVEN THE ASSESSMENT ORDER IS FRAMED U/S. 143(3) OF THE ACT AND NOT U/S. 144 OF THE ACT AS IS EVIDENT FROM THE ASSESSMENT ORDER. IN SUCH CIRCUMSTANCES, WE HAVE NO HESITATION IN DELETI NG THE PENALTY AND THIS ISSUE OF ASSESSEES APPEAL IS ALLOWED. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 7. ORDER PRONOUNCED IN OPEN COURT ON 09.08.2012 SD/- SD/- , ! ! ! ! ' ! ' ! ' ! ' ! , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( - - - -) )) ) DATED: 9TH AUGUST, 2012 ./ '$01 '2 JD.(SR.P.S.) , 3 ''4 54&6- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT M/S. SINGH CONSTRUCTION CORPORATION, NE CHAN ROAD, BHIRINGEE, DURGAPUR-13. 2 +)* / RESPONDENT ADDL. CIT, RANGE-2, DURGAPUR. 3 . ',$ ( )/ THE CIT(A), DURGAPUR 4. ',$ / CIT, 5 . ='> '$ / DR, KOLKATA BENCHES, KOLKATA +4 '/ TRUE COPY, ,$/ BY ORDER, ! 1 /ASSTT. REGISTRAR .