RAO & ASHOK , MUMBAI V. ITO , WARD- 16 (3)(3), MUMBAI

ITA 2268/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6399 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 11-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL DESH
• Keywords: Reasonable cause; Condonation of delay
• Section: 143(3); 142(1); 143(1); 250; 143(2); 139(1); 271B; 119

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL D BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER & AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.2268/MUM/2019 (ASSESSMENT YEAR 2013-14 ) M/S RAO & ASHOK, UNIT NO. 111, 1 ST FLOOR, HIREN LIGHT INDUSTRIAL PREMISES, 408, MOGHUL LANE, MAHIM, MUMBAI-400016. PAN: AAEFR0210R VS. ITO, WARD-16(3)(3), 4 TH FLOOR, ROOM NO. 448, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : NONE RESPONDENT BY : SHRI SUNIL DESHPANDE (DR) DATE OF HEARING :08.04.2021 DATE OF PRONOUNCEMEN T :20.04.2021 ORDER PER PAVAN KUMAR GADALE, JUDICIAL MEMBER; 1. THE ASSESSEE FIRM HAS FILED THE APPEAL AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX APPEALS (THE LD. CIT(A)- 7), MUMBAI PASSED UNDER SECTION 271B AND 250 OF THE INCOME TAX ACT ( HEREINAFTER REFERRED AS THE ACT). THE ASSESSEE HAS RAISED THE SOLE GR OUND OF APPEAL: ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 46,462/- UNDER SECTIO N 271B LEVIED BY THE LEARNED ASSESSING OFFICER BY REJECTING ALL THE FACTS OF THE APPELLANTS FOR LATE FILING OF APPEAL REPORT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM AND IS ENGAGED IN THE PROFESSION OF CHARTERED ACCOUNTANTS AND FILED THE RETURN OF INCOME ON 29.11.2013 WITH THE TOTAL INCOME OF RS. 1 8,13,363/-. THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. SUBSEQUENTLY, THE ITA NO. 2268/ MUM/ 2019 -M/S RAO &ASHOK. 2 CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SEC TION 143(2) & 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE WAS ISSUED. IN COM PLIANCE, THE LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSE APPEA RED FROM TIME TO TIME AND SUBMITTED THE DETAILS. THE ASSESSING OFFICER (A O) OBSERVED THAT THE ASSESSEE FIRM HAS NOT FILED THE RETURN OF INCOME WI TH IN THE TIME LIMIT PROVIDED UNDER SECTION 139(1) OF THE ACT. FURTHER THE ASSESSEE FIRM HAS TO FILE THE TAX AUDIT REPORT U/SEC44AB OF THE ACT ON OR BEFORE THE DUE DATE UNDER SECTION 139(1) OF THE ACT. BUT THE ASSESSEE H AS FILED THE AUDITED ACCOUNTS, AUDIT REPORT AND RETURN OF INCOME ON 29.1 1.2013 WERE AS SPECIFIED DUE DATE WAS EXTENDED BY CBDT NOTIFICATIO N UP TO 31 ST OCTOBER 2013.THEREFORE, PENALTY UNDER SECTION 271B OF THE A CT WAS INITIATED BY THE ASSESSING AUTHORITY. FURTHER THE A.O. HAS VERIFIED THE INFORMATION FILED AND ACCEPTED THE INCOME AS PER THE RETURN OF INCOME AND PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT DATED 29.03.2016. SUBSEQU ENTLY, THE AO HAS INITIATED THE PENALTY PROCEEDING UNDER SECTION 271B OF THE ACT, AS THE ASSESSE FIRM HAS NOT FILED THE TAX AUDITED REPORT U/SEC44AB OF THE ACT BEFORE THE DUE DATE UNDER SECTION 139(1) OF THE ACT . THE ASSESSE FIRM HAS FILED DETAILED EXPLANATIONS BY LETTER DATED 22.09. 2016 MENTIONING THE VALID REASONS AND THE TECHNICAL DIFFICULTIES IN FILLING THE TAX AUDIT REPORT AND ACCOUNTS. WHEREAS, THE AO FOUND THE EXPLANATIONS AR E NOT SATISFACTORY AND LEVIED THE PENALTY UNDER SECTION 271B OF THE ACT OF RS.46,462/- AND PASSED THE ORDER UNDER SECTION 271B OF THE ACT DATED 29.03 .2016. ITA NO. 2268/ MUM/ 2019 -M/S RAO &ASHOK. 3 3. AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILED APPE AL WITH THE LD. CIT(A), WHEREAS THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE AO IN LEVYING THE PENALTY AND DISMISSED THE ASSESSEES APPEAL. AGGRIE VED BY THE ORDER OF LD. CIT(A), THE ASSESSE HAS FILED THE APPEAL BEFORE TH E HONBLE TRIBUNAL 4. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE AND HEARD THE SUBMISSIONS OF THE LD. DR FOR THE REVENUE. THE LD. DR RELIED ON THE ORDER OF LD. CIT(A). 5. WE HAVE HEARD THE LD. DRS SUBMISSION AND PERUSED T HE MATERIAL ON RECORD. THE SOLE DISPUTED ISSUE BEING A LEVY OF PENALTY UND ER SECTION 271B OF THE ACT FOR NON-FILING OF TAX AUDIT REPORT U/SEC44AB O F THE ACT WITHIN THE DUE DATE UNDER SECTION 139(1) OF THE ACT. WE FIND THAT THE A.O. HAS LEVIED THE PENALTY CONSIDERING THE FACT, THAT THERE IS A DELAY OF 29 DAYS IN FILING THE RETURN OF INCOME AND TAX AUDIT REPORT. BUT AS PER T HE PROVISIONS, THE RETURN OF INCOME ALONG WITH TAX AUDIT REPORT HAS T O FILED ON OR BEFORE 30.09.2013 FOR THE SAID ASSESSMENT YEAR. WHEREAS TH E CBDT HAS ISSUED NOTIFICATION BY EXTENDING THE DUE DATE, AS PER THE ORDER UNDER SECTION 119 OF THE ACT FROM 30.09.2013 TO 31.10.2013. THE ASSESSEE FIRM HAS MADE SUBMISSIONS BEFORE THE LD. CIT(A) THAT THERE IS A M ARGINAL DELAY OF 29 DAYS IN SUBMITTING THE TAX AUDIT REPORT AND FILING THE I NCOME TAX RETURN AND THERE IS NO WANTON ACT FOR THE DELAY. WE FIND THE EXPLANATIONS THAT THE ASSESSE IS A CHARTERED ACCOUNTANTS FIRM AND DEALIN G IN AUDITING OF BOOKS OF ACCOUNTS OF THE TRUST. IN THIS PARTICULAR ASSESSME NT YEAR, THE RETURN OF ITA NO. 2268/ MUM/ 2019 -M/S RAO &ASHOK. 4 INCOME OF THE TRUST HAVE TO FILED ELECTRONICALLY WI TH THE INCOME TAX DEPARTMENTS WEBSITE. AND DUE TO TECHNICAL ISSUES A ND PRESSURE OF WORK, THE ASSESSE FIRM COULD NOT FILE THEIR RETURN OF INC OME WITHIN THE DUE DATE SPECIFIED UNDER SECTION 139(1) OF THE ACT. WE HAVE CONSIDERED THE OVERALL FACTS, SUBMISSIONS BEFORE THE LOWER AUTHORITIES AND MATERIAL ON RECORD ARE OF THE VIEW THAT THE DELAY IS FILLING IS NOT A WAN TON ACT AND THE EXPLANATIONS HAS A REASONABLE CAUSE. ACCORDINGLY, WE SET-ASIDE T HE ORDER OF LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENA LTY AND ALLOW THE GROUND OF APPEAL OF THE ASSESSE. 6. IN THE RESULT, APPEAL OF THE ASSESSE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/04/2021. SD/- SD/- ( SHAMIM YAHYA) ( PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDIC IAL MEMBER MUMBAI, DATE: 20.04.2021 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSE 2. RESPONDENT 3. THE CIT(A)-7 4. THE CIT 5. DR D BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI