Smt. A. Suganthi, CHENNAI V. ITO, CHENNAI

ITA 2313/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7955 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 08-08-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: G BASKAR
• Section: 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , ! ' . #$ % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO.2313/MDS./2016 / ASSESSMENT YEAR : 2011-12 SMT. A.SUGANTHI , 55,N M ROAD, AVADI,CHENNAI 600 054. VS. THE ITO, CIRCLE-XIV(4), CHENNAI. [PAN BDKPS 6180 D ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : MR.G.BASKAR,ADVOCATE /RESPONDENT BY : MR.SHIVA SRINIVAS, D.R / DATE OF HEARING : 09 - 11 - 201 6 / DATE OF PRONOUNCEMENT : 30 - 11 - 2016 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-7, CHENNA I DATED 31.05.2016 PERTAINING TO ASSESSMENT YEAR 2011-12 C ONFIRMING THE PENALTY LEVIED U/S.271B OF THE ACT. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED HER RETURN OF INCOME ADMITTING AN INCOME OF ` 4,38,620/- AND IN PROFIT AND LOSS ACCOUNT, ASSESSEE ADMITTED GROSS SALES OF ` 8.27 CRORES, WHICH REQUIRED THE ASSESSEE TO COMPLY WITH THE PROVISIONS 44ABOF THE ACT. ITA NO.2313/MDS./16 :- 2 -: 2.1. AS PER THE GUIDELINES/INSTRUCTION F.NO.225/117/2013 ITA.II DATED 26.9.2013 WHICH IS REPRODUCED AS FOLLOWS CBDT IN EX ERCISE OF POWER UNDER SEC 119(2)(A) OF THE L.T. ACT, 1961 READ WITH SEC 1 39 AND RULE 12, HAS DECIDED TO RELAX THE REQUIREMENT OF FURNISHING THE REPORT OF AUDIT ELECTRONICALLY AS PRESCRIBED UNDER THE PROVISO TO S UB-RULE (2) OF RULE 12 OF THE IT RULES FOR THE ASSESSMENT YEAR 201314 AS UND ER:- (C) THE ASSESSEES, WHO ARE PRESENTLY FINDING IT DIF FICULT TO UPLOAD THE PRESCRIBED REPORT OF AUDIT (AS REFERRED TO ABOVE) I N THE SYSTEM ELECTRONICALLY MAY ALSO FURNISH THE SAME MANUALLY BEFORETHE JURISD ICTIONAL ASSESSING OFFICER WITHIN THE PRESCRIBED DUE DATE. (D) THE SAID REPORT OF AUDIT SHOULD HOWEVER BE FURN ISHED ELECTRONICALLY ON OR BEFORE 31.10.2013. FURTHER VIDE CIRCULAR/INSTRUCTION/DIRECTION ISSUED BY CBDT IN NO. F.NO.225/117//2013/ITA1I DATED-24,10.2013 THE CBDT HAD INSTRUCTED VIDE ORDER UNDER SECTION 119 OF THE INCOME TAX ACT, 1961 , IN EXERCISE OF POWERS CONFERRED UNDER SECTION 119 OF THE INCOME-TAX ACT, 1961, THE CENTRAL BOARD DIRECT TAXES, IN CONTINUATION TO ORDER U/S 119 DATE D 26.09.2013 F.NO.225/117/2013/ITA.11, HEREBY DIRECTS THAT IN CA SES WHERE THE DUE DATE OF FURNISHING REPORTS OF AUDIT AND CORRESPOND ING INCOME-TAX RETURN WAS 30TH SEPTEMBER, 2013 SUCH REPORTS OF AUDIT AND RETU RNS OF INCOME SHALL BE DEEMED TO HAVE BEEN FURNISHED WITHIN THE DUE DATE PRESCRIBED UNDER SECTION 139 OF THE INCOME TAX ACT 1961. 2.2 IT IS SEEN FROM THE MATERIAL AVAILABLE ON RECOR DS THAT THE ASSESSEE HAD NOT FURNISHED OR FILED THE AUDIT REPORT PRESCRIBED U/S 44AB OF THE I.T. ACT 1961 BEFORE THE ASSESSING OFFICER AS PER THE GUIDEL INE MENTIONED ABOVE. ITA NO.2313/MDS./16 :- 3 -: HENCE PENALTY U/S 271B WAS INITIATED BY ISSUE OF NO TICE U/S 271B DATED 30/9/2014 WHICH WAS DULY SERVED ON THE ASSESSEE. C ONSEQUENTLY, THE AO LEVIED THE PENALTY OF 1.5 LAKHS U/S.271B OF THE ACT , WHICH WAS CONFIRMED BY THE LD.CIT(A). AGAINST THE ORDER OF LD.CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IT IS NOT IN THE DISPUTE THAT THE ASSESSEE HAS GOT ITS ACCOUNT AUDITED WITHIN THE TIME I.E. ON 04.07.2011 AND THE DATE OF FILING E-RETURN WAS ON 31.10.2011 FOR ASSESSMENT YEAR 2011-12. THE ASSES SEE ALSO MENTIONED IN THE E-RETURN FILED THE DETAILS OF AUDITOR I.E.NAME OF AUDITOR MR.S.S.SAMPATKUMAR,C.A AND ALSO DATE OF AUDIT REPOR T WAS AS ON 04.07.2011. HOWEVER, THERE IS NO REQUIREMENT OF FI LING AUDIT REPORT ALONG WITH THE E.RETURN, WHICH WAS ACCORDINGLY NOT FURNIS HED TO THE DEPARTMENT. THE CONTENTION OF LD.D.R IS THAT IN SPITE OF REQUIR ING & CALLING FOR AUDIT REPORT FOR ASSESSMENT PROCEEDINGS, THE ASSESSEE FAI LED TO PRODUCE A COPY OF AUDIT REPORT BEFORE THE AO. THEREFORE, THE ONLY DEF AULT BY THE ASSESSEE IS WITH REGARD TO FURNISHING OF THE AUDIT REPORT BEFOR E THE DUE DATE. IT IS NOT IN DISPUTE THT THE ASSESSEE HAS GOT THE AUDITED ACCOUN TS IN ACCORDANCE WITH PROVISIONS OF THE SECTION 44AB OF THE ACT. IN THE A BOVE CIRCUMSTANCES, THE ASSESSEES COUNSEL REMAINS UNDER THE BONAFIDE IMPRE SSION THAT SINCE THE E- RETURN OF INCOME WAS SUBJECTED TO E-FILING AND THE NAME OF THE AUDITOR WAS MENTIONED THEREIN ALONG WITH THE AUDIT REPORT, THER E IS NO CONTRAVENTION TO PROVISIONS OF THE SECTION 44AB OF THE ACT, AS THE A UDIT REPORT ARE TO BE FURNISHED ALONG WITH THE E-RETURN. IN OUR OPINION, ASSESSEE CANNOT BE ITA NO.2313/MDS./16 :- 4 -: PENALIZED U/S.271B OF THE ACT.THE ASSESSEE IS HAVIN G A BONA FIDE BELIEF OF THE ASSESSEES COUNSEL THAT IT DOES NOT PROVIDE TO FURNISH A COPY OF AUDIT REPORT AND THE ASSESSEE HAS ALREADY GOT AUDITIED TH E BOOKS OF ACCOUNTS AS PER PROVISIONS OF THE SECTION 44AB OF THE ACT. THE DEFAULT COMMITTED BY THE IS ONLY A TECHNICAL BREACH BECAUSE THE AUDITORS RE PORT WAS ALREADY AVAILABLE WITH THE ASSESSEE AND THERE WAS NO LOSS TO THE DEPA RTMENT BECAUSE OF NON- FILING OF REPORT BEFORE THE AO AND IT ADMITTED FACT THAT THE ASSESSEE HAS AUDITED THE ACCOUNTS IN ACCORDANCE WITH LAW. IN VIE W OF THE ABOVE CIRCUMSTANCES, IN OUR OPINION FOR SUCH TECHNICAL AN D VENIAL DEFAULT, IT WOULD NOT BE JUSTIFIED TO LEVY OF PENALTY U/S.271B OF THE ACT. ACCORDINGLY, WE ARE INCLINED TO DELETE THE PENALTY LEVIED BY THE LOWER AUTHORITIES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON 30 TH NOVEMBER, 2016, AT CHENNAI. S D/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) % / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 30 TH NOVEMBER, 2016 K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 3. - 1-!' / CIT(A) 5. /23- 4 / DR 2. / RESPONDENT 4. - 1 / CIT 6. 3&-5 / GF