Shri G.Sasikumar, CHENNAI V. ITO, Salem

ITA 2202/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1062 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-03-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution; Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER] I.T.A.NO.2202/MDS/2012 ASSESSMENT YEAR :2009-2010 SHRI . G. SASIKUMAR, SRI GANESH HARVESTER SPARES, 1247,OPP. SRI VELMURUGAN THEATRE, UDAYARPALAYAM, ATTUR, SALEM 636102 [PAN] BGLPS 2717 Q (APPELLANT) APPELLANT BY RESPONDENT BY DATE OF HEARING DATE OF PRONOUNCEMENT VS THE INCOME TAX OFFICER WARD II (3), SALEM (RESPONDENT) SHRI . A .S . SRIRAMAN, ADVOCATE SHRI . GURU BHASHYAM JCIT 06-03-2013 08-03-2013 ORDER PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAIN ST THE ORDER OF THE CIT (A), SALEM, DATED 13.09.2012. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: :2-: 1T.A. NO.2202/12 . 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS) , SALEM 2. DATED 13.09.2012 IN 1 . T . A . NO . 36/20 1 0 - 11 FO R THE ABOVE MENTIONED ASSESSMENT YEA R IS CONTRARY TO LAW , FACTS , AND IN THE CIRCUMSTANCES OF THE CASE . 2 . THE CIT (APPEALS) ERRED IN SUSTA I NING THE LEVY OF PENALTY U/S 271B OF THE ACT FOR NON FURNISHING OF VALID AUD IT REPORT IN TERMS OF SECTION 44AB OF THE ACT WITHOUT ASSIGNING PROPE R REASONS AND JUSTIFICATION . 3 THE CIT (APPEA L S) FAILED TO APPRECIATE THAT THE FURNISHING OF AUDI T REPORT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE WAS EFFECTIVELY COMPLIED WITH AND OUGHT TO HAVE APPRECI ATED THAT THE MOMENT THE MISTAKE IN FURNISHING AN AUD IT REPORT FROM THE UNQUALIFIED PERSON . WHICH REPORT WAS OBTAINED UNDER BONAFIDE CIRCUMSTANCES , THE FURNISHING OF AUDIT REPORT FROM THE QUALIFIED CHARTERED ACCOUNTANT BEFORE THE COMPLETION OF THE A SSESSMENT WAS NOT TAKEN NOTE OF AND BRUSHED ASIDE . 4 . THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE PRO VRSIONS OF SECTION 273B OF THE ACT WAS TOTALLY OVERLOOKED A ND FURTHER OUGHT TO HAVE APPRECIATED THAT THE POWER TO IMPOSE PENALT Y WAS NOT ABSOLUTE INASMUCH AS THE DISCRETION VESTED IN SE CTION 271 B R/W SECTION 273B OF THE ACT WAS NOT EXERCISED JUDICI OUSLY ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE . 5. THE CIT (APPEALS) FAILED TO APPRECIATE THAT NON CONSIDERATION OF GROUND NOS . 4 & 5 FORMING PART OF STATUTORY FORM NO . 35 WOULD VITIATE HIS ACTION IN LEVYING PENALTY UNDER CON SIDERATION . 6. THE CLT (APPEALS) FAILED TO APPRECIATE THAT TH ERE WAS NO DEFAULT AS MADE OUT IN THE PENALTY ORDER FOR COMPLYING THE PROVISIONS OF SECTION 44AB OF THE ACT AND OUGHT TO HAVE APPR ECIATED THAT IN SUCH CIRCUMSTANCES LEVY OF PENALTY U/S 271 B O F THE ACT WAS WRONG , INCORRECT , UNJUSTIFIED , ERRONEOUS AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW . 7. THE CIT (APPEALS) FAILED TO APPREC I ATE THAT THE ORDER IMPOSING PENALTY UNDER CONSIDERATION WAS PASSED OUT OF TIME , INVALID , PASSED WITHOUT JURISDICT I ON AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW. :- 3 -: / . T . A.NO.2202 1 11 8. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THERE WAS NO PROPER OPPORTUNITY GIVEN BEFORE PASSING THE IMPUGNED ORDER AND ANY ORDER PASSED IN VIOLATION OF THE PRINCIPLES OF NATU RAL JUSTICE IS NULLITY IN LAW . 9. THE CIT (APPEALS) WENT WRONG IN RECORDING THE FIND INGS IN THIS REGARD IN PARA 5 OF THE IMPUGNED ORDER WITHOUT ASSI GNING PROPER REASONS AND JUSTIFICATION . 10. THE CIT (APPEALS) FAILED TO APPRECIATE THAT HAVING ACCEPTED THE BONAFIDE ACTION OF THE APPELLANT IN OBTAINING THE A UDIT REPORT FROM THE UNQUALIFIED PERSON BASED ON THE CIRCUMSTAN TIAL EVIDENCE , THE SUSTENANCE OF PENALTY AS A CONSEQUENCE WAS ERRONEOUS AND INVALID . 11. THE CIT (APPEALS) FAILED TO APPRECIATE THAT HAVING NOT CONDUCTED ANY CROSS VERIFICATION EVEN THOUGH SUCH POWERS WERE VESTED ON THE CONSIDERATION OF THE FIRST APPELLATE PROCEEDING S ; THE SUSTENANCE OF THE PENALTY UNDER SUCH CIRCUMSTANCES WAS ERRONEOUS AND INVALID . 12. THE CIT (APPEALS) FAILED TO APPRECIATE THAT HAVING FURTHER NOTICED THE FACT OF LODGING OF POLICE COMPLAINT BY THE ICAI AGAINST THE SAID UNQUALIFIED PERSON WHO GAVE THE AUDIT REPO RT U/S 44AB OF THE ACT UNDER MISLEADING CIRCUMSTANCES , THE SUSTENANCE OF PENALTY UNDER CONSIDERATION WAS ERRONEOUS AND INVAL ID . 13. THE CIT (APPEALS) JAILED TO APPRECIATE THAT THERE WAS NO NEED TO TAKE LEGAL ACTION AGAINST THE SAID UNQUALIFIED PERS ON WHO GAVE THE AUDIT REPORT AND OUGHT TO HAVE APPRECIATED THAT SUCH/NECESSARY ACTION WAS ALREADY INITIATED BY THE COMPETENT BODY , NAMELY , THE ICAI . 14 . THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GROUN DS/ARGUMENTS AT THE TIME OF HEARING . 2. THE SOLE ISSUE INVOLVED IS THAT THE CIT CA) ERR ED IN CONFORMING THE LEVY OF PENALTY U/S 271B OF THE ACT. :- 4 -: 1 . T .A .NO. 22()2112 3. THE BRIEF FACT OF THE CASE IS THAT THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR2009-2010 ALONGWITH AUDIT REPORT SINGED BY ONE SHRI . K. PERIASAMY OF ATTUR . LATER , IT WAS FOUND THAT THE SAID INDIVIDUAL WAS NOT A QUALIFIED ACCOUNTANT WITHIN TH E MEANING OF SECTION 288(2) OF THE INCOME-TAX ACT, 1961 . THE ASSESSING OFFICER HAS LEVIED PENALTY U/S 271B FOR NON AUDITING OF ACCOUNTS OF RS . 27,379/ - IN THE CASE OF THE ASSESSEE. FURTHER, THE SOUTHERN REGIONA L COUNCIL OF INSTITUTE OF CHARTERED ACCOUNTS OF INDIA, CHENNAI H AS LODGED A POLICE COMPLAINT AGAINST THE SAID INDIVIDUAL IN THE CASE O F M/S . AYILPATHY PA CB LTD, RASIPURAM. 4. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE FILED APPEAL BEFORE THE CIT (A). THE ASSES SEE SUBMITTED THAT SHRI . K. PERIASAMY HAS BEEN SIGNING TAX AUDIT REPORT FOR CERTAIN OTHER ASSESSEE ALSO WITH HIS SEAL AS A CHARTERED ACCOUNTA NT, THEREFORE THE ASSESSEE BONAFIDELY BELIEVED HIM TO BE AN ACCOUNTAN T ACCORDING TO EXPLANATION TO SECTION 288(2) OF THE ACT. THE ASSES SEE FURTHER SUBMITTED THAT NO LOSS OF REVENUE AND ALSO STATED T HAT THE APPELLATE AUTHORITIES ARE TAKING LENIENT VIEW WITH REGARD TO PENAL PROVISIONS. 5. THE CIT(A), AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN LE VYING PENALTY U/S :- 5 -: I. T . A.NO. 2202 1 /2 271B OF THE ACT. HE OBSERVED THAT IT WAS TRUE THAT THE ASSESSEE WENT TO THE INDIVIDUAL IN GOOD FAITH BUT SINCE THE ASSES SEE HAS NOT TAKEN ANY LEGAL MEASURES AGAINST SHRI. K. PERIASAMY ONCE THE FAULT WAS DETECTED, THE PLEA OF GOOD FAITH WAS NOT ACCEPTABLE. HE CONFI RMED THE PENALTY ON THE GROUND THAT IT WILL ENCOURAGE MORE SUCH INST ANCES. 6. THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE FI LED BEFORE US A COPY OF THE CONSOLIDATED ORDER OF CHENNAI BENCH CA) OF THE TRIBUNAL PASSED ON 11TH JANUARY, 2013 IN THE CASE OF SHRL P. SENTHIL KUMAR VS ITO, SHRI . A. SEKAR VS ITO, AND SHRI . A . KALAISELVAN VS ITO, IN ITA NOS.1912/2012, 1914/2012 AND 1945/ 2012 RESPECTIVEL Y AND SUBMITTED THAT THE TRIBUNAL IN THOSE CASES HAS DELE TED THE PENALTY U/S 271B OF THE ACT. THE FACTS OF THE PRESENT APPEAL OF THE ASSESSEE ARE IDENTICAL TO THE FACTS OF THE CASES QUOTED ABOVE, T HEREFORE, THE APPEAL OF THE ASSESSEE SHOULD BE ALLOWED AND PENALTY LEVIE D U/S 271B SHOULD BE DELETED. 7. ON THE OTHER HAND, THE DEPARTMENTAL REPRESENTAT IVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RE CORD. THE UNDISPUTED FACTS OF THE CASE IS THAT ASSESSEE HAS VOLUNTARILY FILED RETURN OF INCOME :- 6 -: J . T .R T.NO. 2202 1 12 AND IT WAS LIABLE TO GET THE ACCOUNTS AUDITED U/S 4 4AB OF THE ACT AND TO OBTAIN A REPORT FROM THE ACCOUNTANT AS EXPLAINED U/S 288 (2) OF THE ACT, AND THE ASSESSEE HAS OBTAINED A REPORT U/S. 44 AB FROM SHRI . K. PERIASAMY. ACCORDING TO THE ASSESSING OFFICER, LATE R ON IT WAS FOUND THAT SHRI . K. PERIASAMY WAS NOT A QUALIFIED CHARTERED ACCOUNTA NT AND WAS NOT LEGALLY COMPETENT TO ISSUE AUDIT REPORT U/S 44AB OF THE ACT. THE ASSESSING OFFICER, THEREFORE, HELD THAT TH E ASSESSEE HAS FAILED TO OBTAIN AUDIT REPORT AS REQUIRED U/S 44AB OF THE ACT. THE ASSESSING OFFICER, CONSEQUENTLY LEVIED PENALTY U/S 271B OF THE ACT . 9. ON APPEAL, THE CIT (A), THOUGH AGREED THAT IT AP PEARED TO HIM THAT THE ASSESSEE HAS OBTAINED AUDIT REPORT FRO M SHRI . K. PERIASAMY UNDER GOOD FAITH, BUT HE STILL CONFIRMED LEVY OF PENALTY U/S 271B OF THE ACT ON THE GROUND THAT THE ASSESSEE HAV E NOT TAKEN ANY LEGAL ACTION AGAINST THE PERSON AND DELETION OF PEN ALTY WILL ENCOURAGE MORE SUCH INSTANCES. 10. AGAINST THE ABOVE ORDER OF THE CIT(A) , THE AS SESSEE IS IN APPEAL BEFORE US. 11 . WE FIND THAT ON SIMILAR FACTS, THE CHENNAI 'A' BENC H OF THE TRIBUNAL PASSED CONSOLIDATED ORDER ON N' JANUARY, 2013 IN THE CASE OF SHRI . P. SENTHIL KUMAR VS ITO, SHRI. A . SEKAR VS ITO, AND SHRI . ~ :- 7 -: I . T . A.NO. 2202 / / 2 A. KALAISELVAN VS ITO, IN ITA NOS.1912/2012 , 1914/2012 AND 1915/ 2012 RESPECTIVELY, WHEREIN THE TRIBUNAL HAS HELD AS UNDER: 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAIL ABLE ON RECORD. THE UNDISPUTED FACTS OF ALL THE THREE CASES ARE THAT THE ASSESSEE IN ALL THE THREE CASES VOLUNTARILY FILED THEIR RETURN OF INCOME AND AS THE Y WERE LIABLE TO GET THEIR ACCOUNTS AUDITED U/S 44AB OF THE ACT AND TO OBTAIN A REPORT FROM THE ACCOUNTANT AS EXPLAINED U/S 288(2) OF THE ACT, THEY OBTAINED A REPORT U/S 44AB FROM SHRI K. PERIASAMY. ACCORDING TO THE ASSESSING OFFICER, LATER ON IT WAS FOUND THA T SHRI K. PERIASAMY WAS NOT A QUALIFIED CHARTERED ACCOUNTANT AND WAS NOT LEGALLY COMPETENT TO ISSUE AUDIT REPORT U/S 44AB OF THE ACT. THE ASSESSING OFFICER, THEREFORE, HELD THAT THE ASSESSEES HAVE FAILED TO OBTAIN AUDIT REPORT AS REQUIRED U/S 44AB OF THE ACT. THE ASSESSING OFF I CER, CONSEQUENTLY LEVIED PENALTY U/S 271B OF THE ACT IN ALL THE THREE CASES. 9. ON APPEAL, THE CIT(A), THOUGH AGREED THAT IT APPEARED TO HIM THAT THE ASSESSEES HAD OBTAINED AUDIT REPORT FROM SHRI K. PERIASAMY UNDER GOOD FAITH, BUT HE STILL CONFIRMED LEVY OF PENALTY U/S 271B OF THE ACT ON THE GROUND THAT THE ASSESSEES HAVE NOT TAKEN ANY LEGAL ACTION AGAINST THE PERSON AND DELETION OF PENALTY WILL ENCOURAGE MORE SUCH INSTANCES. 10. AGAINST THE ABOVE ORDER OF THE CIT(A), THE ASSESSEES ARE IN APPEAL BEFORE US. 11. WE FIND THAT THE REVENUE HAS BROUGHT NO MATERIAL ON RECORD TO SHOW THAT HOW LATER ON IT WAS DISCOVER ED THAT SHRI K. PERIASAMY WAS NOT COMPETENT TO SIGN AUDIT REPORT. BE THAT AS IT MAY. WE FIND THAT IT I S NOT IN DISPUTE THAT THE DATE ON WHICH THE ASSESSEES - 8 _. . . I. T. ~. NO. 221)2/12 OBTAINED AUDIT REPORT FROM THE SAID SHRI K. PERIASAMY AND THE DATE ON WHICH THE ASSESSEES FILED THEIR RETURN OF INCOME IT WAS NOT DISCOVERED THAT THE SAID SHRI K. PERIASAMY WAS NOT A QUALIFIED CHARTERED ACCOUNTANT AND CONSEQUENTLY WAS NOT LEGALLY AUTHORIZED TO ISSUE THE AUDIT REPORT U/S 44AB OF THE ACT. IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEES WITH ANY MALAFIDE INTENTION AND WITH A VIEW NOT TO GET THEIR ACCOUNTS AUDITED BY A PERSON AUTHORIZED UNDER LAW HAS OBTAINED THE AUDIT REPORT FROM SHRI K. PERIASAMY. IT IS ALSO NOT THE CASE OF THE REVENUE THAT THE ASSESSEES WERE AWARE OF THE FACT THAT SHRI K. PERIASAMY WAS NOT LEGALLY AUTHORIZED TO ISSUE THE AUDIT REPORT U/S 44AB OF THE ACT. 12. FROM THE ADMITTED FACTS, IT IS CLEAR THAT THE A SSESSES HAVE OBTAINED THE AUDIT REPORT U/S 44AB OF THE ACT FROM THE SAID SHRI K. PERIASAMY BECAUSE OF MISREPRESENTATION MADE BY THE SAID SHRI K. PERIASAMY. IN THE ABOVE FACTS AND CIRCUMSTANCES, IN OUR CONSIDERED VIEW, . SECTION 273B WAS SQUARELY APPLICABLE IN THE PRESENT CASES WHICH PROVIDES THAT NO PENALTY U/S 271B SHALL BE LEVIED IF THE ASSESSEE WAS PROHIBITED FROM COMPLYING WITH THE PROVISIONS O F SECTION 44AB OF THE ACT FOR A REASONABLE CAUSE. THE REASONS ADVANCED BY THE C!T(A) FOR CONFIRMING THE LEVY OF PENALTY U/S 217B EVEN AFTER FINDING THAT TH E AUDIT REPORT WAS OBTAINED BY THE ASSESSEES IN GOOD FAITH ARE NOT LEGALLY TENABLE. THE REASON OF THE C!T(A) THAT THE ASSESSEES HAVE NOT TAKEN ANY LEGAL ACTION AGAINST SHRI K . PERIASAMY DOES NOT SHOW THAT THE ASSESSEES HAVE WILLFULLY DEFAULTED IN MAKING COMPLIANCE WITH THE PROVISIONS OF SECTION 44AB OF T HE ACT. THERE MAY BE MANY REASONS FOR WHICH AN ASSESSEE MAY NOT LIKE TO TAKE LEGAL ACTION AGAINST THE PERSON WHO HAS DEFRAUDED HIM. 13. THE OTHER REASON ADVANCED BY THE C!T(A) FOR NOT ACCEPTING THE PLEA OF THE ASSESSEES WAS THAT SUCH ACCEPTANCE WOULD ENCOURAGE MORE SUCH INSTANCES. :- 9- I . T .A.NO. 22 02 1 / 2 WE DO NOT FIND ANY FORCE IN THIS ARGUMENT AS ANY PERSON WHO WILLFULLY DO NOT COMPLY WITH THE PROVISIONS OF LAW CANNOT ESCAPE PENALTY PROVIDED BY THE LAW. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE DEFAULT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 44AB OF THE ACT BY T HE ASSESSEES WAS NOT WILLFUL BUT BECAUSE OF THE ABOVE DISCUSSED REASONABLE CAUSE AND IN GOOD FAITH AND THEREFORE, LEVY OF PENALTY U/S 271B OF THE ACT WAS NOT JUSTIFIED. OUR ABOVE VIEW FINDS SUPPORT FROM THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIT(E) VS AGRIM CHARAN FOUNDATION, [2002] 253 ITR 593(DEL), WHEREIN THE HON'BLE HIGH COURT HAS HELD AS UNDER: 'THE CONTROVERSY LIES IN A VERY NARROW COMPASS . FOR THE ASSESSMENT YEAR IN QUESTION , THE ASSESSEE FILED ITS RETURN OF INCOME ALONG WITH THE AUDIT REPORT , BALANCE - SHEET, ETC . THE ASSESSING OFFICER NOTED THAT FOR THE PURPOSE OF CLA I MING EXEMPTION UNDER SECTION 11 OF THE ACT , CERTAIN DEPOSITS MADE WITH S . M. FINANCE LIMITED AND UNITECH LIMITED WERE INCLUDED . THESE TWO WERE NOT PUBLIC UNDERTAKINGS, AND, THEREFORE , ACCORDING TO THE ASSESSING OFFICER , THE DEPOSITS WERE MADE IN VIOLAT I ON OF THE PROVISIONS CONTAINED IN SECTION 11 (5) OF THE A CT AND THEREFORE THE BENEFIT UNDER SECTIONS 11 AND 12 READ WITH SECTION 13( 1)( D) OF THE ACT WAS DENIED. THE PETIT IONER FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) (IN SHORT ' THE CIT(A) ') . THE SAME WAS DISMISSED EX PARTE HOLDING THAT THERE WAS NO COMPLI ANCE ON THE DATE FIXED AND THERE WAS NOTHING WRONG WITH THE ORDER OF THE ASSESSING OFFICER . THE ASSESSEE PREFERRED AN APPEAL BEFORE THE INCOME-TAX APPELLATE TRIBUNAL , DELHI BENCH ' B ' , DELHI (IN SHORT THE ' TRIBUNAL ' ) . THE FACTUAL POSITION THAT WAS HIGHLIGHTED BEFORE TH E TRIBUNAL WAS THAT AFTER INCORPORATION OF THE TRUST AND ITS REGISTRATION , CHARITABLE WORK WAS BEING UNDERTAKEN . THE DONATIONS FOR THE CORPUS OF THE TRUST WERE OBTAINED BY ACCOUNT PAYEE CHEQUES . SUCH CORPUS FUNDS HAVE BEEN INVESTED AS FIXED DEPO SITS WITH PUBLIC SECTOR UNDERTAKINGS , V I Z . , UTI, SAIL , NTPC , ETC . DURING THE YEAR UNDER CONSIDERATION , THE TWO CONCERNS , VIZ. , UNITECH LTD . :- 10-: LT . A.NO.2202 1 12 AND S . M. FINANCE LTD . , GAVE FORMS TO THE APPELLANT INVITING DEPOSITS . IN THE FORMS IT WAS SPECIFICALLY MENTIONED THAT THESE CONCERNS WERE AUTHORISED TO AC CEPT DEPOSITS FROM CHARITABLE TRUSTS . ON THE BASIS OF THIS INFORMATION CERTAIN DEPOSITS WERE MADE WITH THESE T WO CONCERNS . AN ADVICE WAS SOUGHT FOR FROM A CHARTERED ACCOUNTANT, WHO ADVISED THAT THE DEPOSITS COULD BE KEPT WITH THESE TWO CONCERNS AND EXEMPTION UNDER SECTION S 11 AND 12 WOULD BE AVAILABLE . HOWEVER , WHEN , AT THE TIME OF ASSESSMENT , THE ASSESSING OFFICER POINTED OUT TO THE CHAIRMAN OF THE TRUST THAT THESE TWO CONCERNS DID N OT HAVE NECESSARY APPROVAL FROM THE GOVERNMENT TO ACCEPT DEPOSITS FROM CHARITABLE TRUSTS , THE ASSESSEE IMMEDIATELY WITHDREW THE DEPOSITS FROM THESE TWO CONCERNS . HOWEVER , EXEMPTION WAS DENIED ON THE GROUND THAT THERE WAS VIOLATION OF THE PROVISIONS . THE TRIBUNAL NOTED THAT THIS WAS A CASE WHERE THE TWO CONCERNS MAY HAVE FLOUTED THE GOVERNMENT RULES AND THE ASSESSEE IN THE ABSENCE OF ANY MALA FIDES AND BEING NOT LINKED WITH THE CONCERNS , SHOULD NOT BE DENIED THE BENEFITS . THE TRIBUNAL , KEEPING IN V I EW THE OBJECTS FOR WHICH SECTION 11 (5) HAS BEEN ENACT ED AND THE FACTUAL BACKGROUND , MORE PARTICULARLY , THE MENTION MADE IN THE FORMS OF THE TWO CONCERNS , AND THE ACT OF THE ASSESSEE IN IMMEDIATELY WITHDRAWING THE AMOUNTS ON BEING MADE AWARE THAT THE TWO CONCERNS WERE NOT PERMITTED TO RECEIVE DEPOSITS, ALLOWED THE ASSESSEE 'S APPEAL . LEARNED COUNSEL FOR THE REVENUE SUBMITTED THAT THERE HAS BEEN A BREACH OF THE STATUTORY PROVISIONS AND, THEREFORE , THE BONA FIDES SHOULD NOT HAVE WEIGHED WITH THE TRIBUNAL . WE HAVE CONSIDERED THE SUBMISSIONS MADE. WE FIND THAT THE TRIBUNAL HAS REFERRED TO VARIOUS F ACTUAL ASPECTS AS ELABORATED ABOVE IN COMING TO THE CONCLU SION THAT THE ASSESSEE COULD NOT BE FAULTED FOR THE MISREPRESENTATION OF THOSE TWO CONCERNS. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE TRIBUNAL TO WARRA NT INTERFERENCE. THE APPEAL IS ACCORDINGLY DISPOSED OF . ' 14. WE, THEREFORE, DELETE THE LEVY OF PENALTY U/S 2 71B OF THE ACT IN ALL THE THREE CASES. 12. THE DEPARTMENTAL REPRESENTATIVE HAS NOT POINTE D OUT ANY REASON FOR NOT FOLLOWING THE ABOVE CONSOLIDATED ORDER OF THE TRIBUNAL . IT IS ALSO NOT IN DISPUTE THAT THE FACTS IN THE PRE SENT , , :- 11 -: I . T.A.NO. 2202 1 12 APPEAL ARE IDENTICAL T O THE FAC T S WHICH WERE BEFORE T HE T R IB UN A L IN THE ABOVE CASES. THEREFORE, RESPECTFULLY FOLLOWING THE ABOV E QUOTED ORDER OF THE TRIBUNAL, WE DELETE THE LEVY OF PENALTY O F RS.27 , 379/- U/S 271B OF THE ACT. 13. - IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D . ORDER PRONOUNCED ON FRIDAY, THE 08TH OF MARCH, 2013 , AT CHENNA I . SD/- (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER DATED.O8TH MARCH, 2013 KV SD/- (N.S.SAINI) ACCOUNTANT MEMBER COPY TO : APPELLANT/RESPONDENT/CIT(A)/CIT/DR.