Singur Thana Large Sized Primary Agriculture Co-Op. Marketing Society ltd., Kolkata V. A.C.I.T Cir - 1,Hooghly, Hooghly

ITA 2396/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4761 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 25-09-2013
• Court: TRIBUNAL
• Department Lawyers: V N PUROHIT; H V BHARDWAJ ACA SHRI R P NAG

Judgement Text

I.T.A. NO. 2396/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 2396 /KOL/ 2013 ASSESSMENT YEAR: 2009-2010 SINGUR THANA LARGE SIZED PRIMARY AGRICULTURE CO-OPERATIVE MARKETING SOCIETY LIMITED,............ ........................APPELLANT C/O. V.N. PUROHIT & CO., CHARTERED ACCOUNTANTS, DIAMOND CHAMBERS, UNIT-III, 4 TH FLOOR, SUIT NO. 4G, 4, CHOWRINGHEE LANE, KOLKATA-700 016 [PAN : AABAS 0029 B] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ......................RESPONDENT CIRCLE-1, HOOGHLY, AAYAKAR BHAWAN, KHADINA MORE, P.O. CHINSURA, HOOGHLY-713 101, WEST BENGAL APPEARANCES BY: SHRI V.N. PUROHIT, FCA & SHRI H.V. BHARDWAJ, ACA, F OR THE ASSESSEE SHRI R.P. NAG, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MAY 13, 2016 DATE OF PRONOUNCING THE ORDER : JUNE 03, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOLKATA DATED 12.08.2013 FOR THE ASSESSMENT YEAR 2009-10, WHEREBY HE CONFIRM ED THE PENALTY OF RS.1,00,000/- IMPOSED BY THE ASSESSING OFFICER UNDE R SECTION 271B OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS A COOPERATIV E SOCIETY. THE TAX AUDIT REPORT AS REQUIRED BY THE PROVISIONS OF SECTI ON 44AB WAS FILED BY IT I.T.A. NO. 2396/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 2 OF 4 ALONG WITH ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 05.01.2009 AS AGAINST THE SPECIFIED DATE OF 30.09.2 009. THE ASSESSING OFFICER, THEREFORE, INITIATED PENALTY PROCEEDINGS U NDER SECTION 271B OF THE ACT AND IN REPLY TO THE SHOW-CAUSE NOTICE ISSUE D DURING THE COURSE OF SAID PROCEEDINGS, THE ASSESSEE-SOCIETY EXPLAINED TH AT THE SENIOR AUDITOR APPOINTED BY THE COOPERATIVE DEPARTMENT TO CONDUCT STATUTORY AUDIT COULD COMPLETE THEIR AUDIT ONLY ON 26.10.2009. IT W AS SUBMITTED THAT THE ASSESSEE-SOCIETY THEREAFTER APPOINTED TAX AUDITOR, WHO IN TURN SUBMITTED HIS AUDIT REPORT ON 15.12.2009, WHICH WAS FILED ON 05.01.2010 ALONG WITH THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATI ON. IT WAS CONTENDED THAT THE FAILURE TO FURNISH THE TAX AUDIT REPORT BE FORE THE SPECIFIED DATE OF 30.09.2009, THEREFORE, WAS FOR SUFFICIENT CAUSE AND A REQUEST WAS MADE TO DROP THE PENALTY PROCEEDINGS INITIATED UNDER SEC TION 271B. THIS EXPLANATION OF THE ASSESSEE WAS NOT FOUND ACCEPTABL E BY THE ASSESSING OFFICER. ACCORDING TO HIM, THE ASSESSEE-SOCIETY COU LD HAVE APPOINTED THE TAX AUDITOR AND COULD HAVE GOT THE TAX AUDIT DONE I NDEPENDENTLY MUCH BEFORE THE SPECIFIED DATE OF 30.09.2009 AND THE DEL AY IN STATUTORY AUDIT UNDER THE COOPERATIVE ACT HAD NO RELEVANCE WITH ITS FAILURE TO OBTAIN AND FURNISH THE TAX AUDIT REPORT BY THE SPECIFIED DATE. HE, THEREFORE, REJECTED THE EXPLANATION OF THE ASSESSEE AND PROCEEDED TO IM POSE THE PENALTY OF RS.1,00,000/- UNDER SECTION 271B OF THE ACT. 3. THE PENALTY IMPOSED BY THE ASSESSING OFFICER UND ER SECTION 271B WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL BEFORE THE LD. CIT(APPEALS) AND THE SUBMISSION MADE BEFORE THE ASSESSING OFFICE R WAS REITERATED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(APPEALS) IN SUPPORT OF ITS CASE. THE LD. CIT(APPEALS), HOWEVER, DID NOT FIND MERIT I N THE SAME AND PROCEEDED TO CONFIRM THE PENALTY IMPOSED BY THE ASS ESSING OFFICER FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 4.1 OF HIS IMPUGNED ORDER:- 4.1. THE APPELLANTS SUBMISSION AND EVIDENCE AVAILA BLE ON RECORD HAS BEEN CAREFULLY CONSIDERED. DURING THE CO URSE OF HEARING, THE A/R OF THE APPELLANT WAS ASKED TO PROD UCE ALL CORRESPONDENCE MADE BY THE APPELLANT WITH THE COOPE RATIVE DEPARTMENT TO ENSURE THAT THE AUDIT IS DONE WITH TH E SPECIFIED DATE. HOWEVER, THE A/R HAS BEEN UNABLE TO PROVIDE A NY I.T.A. NO. 2396/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 3 OF 4 CORRESPONDENCE OR OTHER EVIDENCE TO SHOW THAT ANY E FFORT WAS MADE BY THE APPELLANT, TO ENSURE THAT THE AUDIT WAS DONE BY THE SPECIFIED DATE. IT HAS MERELY BEEN STATED THAT NO CORRESPONDENCE AS TO APPOINTMENT OF AUDITOR IS NEED ED OR DONE. FURTHER, WHILE THE AUDIT BY COOPERATIVE DEPARTMENT WAS DONE ON 26.10.2009, THE FORM NO. 3CB & 3CD WAS OBTAINED FROM A CHARTERED ACCOUNTANT ON 15.12.2009, AFTER ABOUT TWO MONTHS DELAY. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE SIDES AND ALSO PERUSED TH E RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED ON BEHAL F OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW AS WELL AS BEFORE US, ITS FAILURE TO OBTAIN AND FURNISH THE TAX AUDIT REPORT BY THE SPECIFIED DATE OF 30.09.2009 AS PER THE REQUIREMENT OF SECTION 44AB WAS DUE TO DELAY IN COM PLETION OF STATUTORY AUDIT BY THE AUDITORS APPOINTED BY THE COOPERATIVE DEPARTMENT. SINCE THE STATUTORY AUDITOR UNDER THE COOPERATIVE ACT WAS TO BE APPOINTED BY THE COOPERATIVE DEPARTMENT AND SUCH APPOINTMENT AS WELL AS CONDUCT AND COMPLETION OF AUDIT BY THE STATUTORY AUDITOR WAS BE YOND THE CONTROL OF THE ASSESSEE, WE FIND MERIT IN THE CONTENTION OF TH E LD. COUNSEL OF THE ASSESSEE THAT THE DELAY IN COMPLETION OF STATUTORY AUDIT, WHICH CAUSED THE FAILURE OF THE ASSESSEE TO OBTAIN AND FURNISH THE T AX AUDIT REPORT UNDER SECTION 44AB, WAS DUE TO THE REASONS BEYOND THE CON TROL OF THE ASSESSEE AND THE SAME CONSTITUTED THE SUFFICIENT CAUSE FOR I TS FAILURE TO COMPLY WITH THE REQUIREMENT OF SECTION 44AB. MOREOVER, THE TAX AUDIT REPORT OBTAINING BELATEDLY WAS FILED BY THE ASSESSEE ALONG WITH ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 05.01.20 10 AND THE SAME, THEREFORE, WAS AVAILABLE TO THE ASSESSING OFFICER W HILE MAKING THE ASSESSMENT OF THE ASSESSEE FOR THE YEAR UNDER CONSI DERATION. THE DEFAULT ON THE PART OF THE ASSESSEE IN OBTAINING AND FURNIS HING THE TAX AUDIT REPORT BY THE SPECIFIED DATE THUS WAS TECHNICAL OR VENIAL IN NATURE. HAVING REGARD TO ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT IS NOT A FIT CASE TO IMPOSE PENALTY UNDER S ECTION 271B AND I.T.A. NO. 2396/KOL./2013 ASSESSMENT YEAR: 2009-2010 PAGE 4 OF 4 CANCELLING THE PENALTY SO IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS), WE ALLOW THIS APPEAL OF TH E ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 03, 2016 . SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 3 RD DAY OF JUNE, 2016 COPIES TO : (1) SINGUR THANA LARGE SIZED PRIMARY AGRICULTURE CO-OPERATIVE MARKETING SOCIETY LIMITED, C/O. V.N. PUROHIT & CO., CHARTERED ACCOUNTANTS, DIAMOND CHAMBERS, UNIT-III, 4 TH FLOOR, SUIT NO. 4G, 4, CHOWRINGHEE LANE, KOLKATA-700 016 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, HOOGHLY AAYAKAR BHAWAN, KHADINA MORE, P.O. CHINSURA, HOOGHLY-713 101, WEST BENGAL (3) COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOL KATA, (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.