Hynoup Food & Oil Indus.Ltd., Ahmedabad V. The Income tax Officer,Ward-4(3), Ahmedabad

ITA 2214/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0572 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: S V AGRAWAL
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2214/AHD/2013 / ASSESSMENT YEAR : 2005-06 HYNOUP FOOD & OIL IND. PVT. LTD, MARUTI HOUSE, OPP. AIR INDIA, ASHRAM ROAD, AHMEDABAD PAN : AAACH 5534 M VS INCOME TAX OFFICER, WARD-4(3), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.V. AGRAWAL, AR REVENUE BY : SHRI S.L. CHANDEL, SR DR / DATE OF HEARING : 06/09/2016 / DATE OF PRONOUNCEMENT: 07/09/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VIII, AHMEDABA D DATED 27.03.2009 FOR AY 2005-06, CHALLENGING THE IMPOSITION OF PENAL TY OF RS.1,00,000/- LEVIED BY THE AO U/S 271B OF THE INCOME-TAX ACT, 1961 FOR THE DELAYED AUDIT. 2. THE ASSESSEES APPEAL WAS BELATED AND FIRST HEAR D ONLY FOR CONDONATION OF DELAY WHICH WAS AGREED ON PAYMENT OF RS.20,000/- AS COST ON THE ASSESSEE WHICH HAS BEEN DULY PAID. A COPY O F CHALLAN IS PLACED ON RECORD. 3. ON MERITS, LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ASSESSEE IS A SICK AND BIFR COMPANY AND DUE TO VARIOUS REASONS TH E AUDIT COULD NOT BE GOT DONE. IN SIMILAR CIRCUMSTANCES, IN THE PRECEDI NG YEAR IN ITA NO.1634/AHD/2007, THE TRIBUNAL HAS DELETED SIMILAR PENALTY BY FOLLOWING OBSERVATIONS:- 6. IN THE PRESENT CASE DECLARATION OF THE ASSESSEE COMPANY AS A SICK UNIT AND ITS ASSERTION IT HAS RETRENCHED THE STAFF IS A SUFF ICIENT AND REASONABLE PROOF FOR NOT GETTING ACCOUNTS AUDITED. WE ARE UNABLE TO AGRE E WITH THE LD. CIT(A) AND THE LD. DR THAT ORDER OF THE BIFR, A COPY OF WHICH IS PLACED ON RECORD DECLARING THE ASSESSEE AS A SICK UNIT HAS NO RELEVA NCE. IN OUR CONSIDERED VIEW THIS IS A REASONABLE CAUSE FOR NOT GETTING THE ACCO UNTS AUDITED. ACCORDINGLY LEVY OF PENALTY OF AO AND SUSTAINED BY LD. CIT(A) IS CANCELLED. SMC-ITA NO.2214/AHD/2013 HYNOUP FOOD & OIL IND. PVT LTD VS. ITO AY : 2005-06 2 3.1 FACTS AND CIRCUMSTANCES ARE SAME IN THIS YEAR A S WELL. BESIDES, UNLESS THE AUDIT OF PRECEDING YEAR, I.E. AY 2004-05 IS DON E, THE ASSESSEE IS PREVENTED BY SUFFICIENT CAUSE IN NOT GETTING ITS AC COUNTS AUDITED FOR THE PRESENT YEAR I.E. AY 2005-06 IN TIME. IN VIEW THER EOF, THE ASSESSEE IS PREVENTED BY SUFFICIENT CAUSE. 4. THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITI ES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. I FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. THEREFORE, RESPECTFULLY FOLLOWING THE EARLIER DECISION OF ITAT IN ASSESSEE S OWN CASE FOR AY 2004-05 COUPLED WITH THE FACT THAT UNLESS THE AUDIT OF AY 2 004-05 IS DONE, THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN THE B ELATED AUDIT FOR THE YEAR UNDER CONSIDERATION. IN VIEW THEREOF, THE PENALTY IMPOSED BY THE LD. AO IS DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 7 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 07/09/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD