Shyamal Mukherjee, Hooghly V. ITO, Ward - 2(2), Hooghly

ITA 2076/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9457 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 04-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI RAY
• Section: 250; 271B; 44AB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER] I.T.A. NO. 2076/KOL/2018 ASSESSMENT YEAR: 2007-08 SHYAMAL MUKHERJEE.....................................................................................APPELLANT [PAN: AHCPM 7745 D] VS. ITO, WARD-2(2), HOOGHLY..............................................................................................RESPONDENT APPEARANCES BY: SH. SOMNATH GHOSH, ADV., APPEARED ON BEHALF OF THE ASSESSEE. SH. DHRUBAJYOTI RAY, JCIT, SR. DR, APPEARED ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 05 TH , 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 8 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-06, KOLKATA [CIT(A) FOR SHORT] DATED 27.09.2018 U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT) FOR AY 2007-08 WHEREIN THE PENALTY LEVIED U/S 271B OF THE ACT WAS CONFIRMED BY THE LD. CIT(A). 2. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE ASSESSEE WAS NOT REQUIRED TO ATTACH AN AUDIT REPORT ALONG WITH THE INCOME TAX RETURN THAT WAS FILED DURING THE PERIOD. THE CBDT HAD IN ITS CIRCULAR NO. 5/2007 DATED 26.07.2007 STATED SO WHICH IS REPRODUCED AS UNDER: 6.(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 AFTER THE DUE DATE. HOWEVER, AN ASSESSEE SHOULD GET THE REPORT OF AUDIT FROM AN ACCOUNTANT 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 SHOULD 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 FURNISHING 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. 3. THE AUDITOR HAS GIVEN AN ORDER IN FORM NO. 3CB AND 3CD AS REQUIRED UNDER LAW ON 22.10.2007. UNDER THESE CIRCUMSTANCES THE LD. CIT(A) WAS WRONG IN CONFIRMING THE 2 I.T.A. NO. 2076/KOL/2018 ASSESSMENT YEAR: 2007-08 SHYAMAL MUKHERJEE. LEVY OF PENALTY U/S 271B OF THE ACT. THE ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE IN THE FOLLOWING DECISIONS: I. ITA NO. 7355/MUM/2010 (AY 2006-07) II. ITA NO. 6853/DEL/2014 (AY 2008-09) 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 8 TH JANUARY, 2020. SD/- SD/- [S.S. GODARA] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08.01.2020 BIDHAN COPY OF THE ORDER FORWARDED TO: 1. SHYAMAL MUKHERJEE, C/O S.N. GHOSH & ASSOCIATES, ADVOCATES SEBEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S. CHINSURAH, HOOGHLY-712 105. 2. ITO, WARD-2(2), HOOGHLY. 3. CIT(A)-06, KOLKATA. (SENT THROUGH E-MAIL) 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES