Shri G.S. Kishore Kumar, CHENNAI V. ITO, CHENNAI

ITA 2403/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8037 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 19-08-2016
• Court: TRIBUNAL
• Department Lawyers: ASHISH TRIPATHIJCIT
• Assessee Lawyers: K MEENASHI SUNDARAM

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ./ I.T.A.NO.2403 /MDS./2016 ( / ASSESSMENT YEAR :2013-14) MR.G.S.KISHORE KUMAR , 50,B-1,1 ST FLOOR, RADIANT ROHIT APARTMENTS, DR.MURTHY NAGAR, CHENNAI-50. VS. ITO, NON-CORPORATE WARD 5(1), CHENNAI. PAN AOKPK 7226 G ( / APPELLANT ) ( / RESPONDENT ) ! ' # / APPELLANT BY : MR.K.MEENASHI SUNDARAM, C.A $% ! ' # / RESPONDENT BY : MR.ASHISH TRIPATHI,JCIT, D.R & ' ' ( ) / DATE OF HEARING : 21.11.2016 *+ ' ( ) /DATE OF PRONOUNCEMENT : 21.11.2016 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED B Y THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-5, CHENNA I DATED ITA NO. 2403/MDS/2016 2 18.05.2016 IN ITA NO.134/CIT(A)-5 /14-15 CONFIRMIN G THE PENALTY LEVIED U/S.271B OF THE ACT. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE DEC LARED INCOME OF ` 5,27,030/- AGAINST THE TURNOVER OF ` 1,07,11,745/- WHICH REQUIRED THE ASSESSEE TO COMPLY WITH THE PROVISIONS 44ABOF THE A CT, BUT THE ASSESSEE FILED E-RETURN TECHNICALLY ON 30.08.2013 W ITHOUT ATTACHING THE AUDIT REPORT FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE TOOK A PLEA THAT THE ASSESSEE GOT AUDITED ACCOUNT ON 19. 08.2013 AND FILED IT ELECTRONICALLY ON 29.01.2015 AFTER THE RECEIPT O F THE SHOWCASE NOTICE U/S.271B DATED 28.08.2014. THERE WAS NO ASS ESSMENT U/S.143(3) OF THE ACT AND THE RETURN WAS PROCESSED U/S.143(1) OF THE ACT. SINCE THE ASSESSEE HAD NOT FILED THE AUDIT RE PORT U/S.44AB OF THE ACT BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME I.E. 30.08.2013, THE AO LEVIED THE PENALTY U/S.271B OF T HE ACT AT ` 53,559/-. AGAINST THIS, THE ASSESSEE CARRIED THE A PPEAL BEFORE THE LD.CIT(A). BEFORE LD.CIT(A), THE ASSESSEE PLEADED T HAT THE AUDIT REPORT, THOUGH GOT OBTAINED FROM THE TAX AUDITOR ON 19.08.2013, IT WAS MISPLACED AND FAILED TO OBTAIN ANOTHER COPY DUE TO THE ASSESSEE ITA NO. 2403/MDS/2016 3 WAS PRE-OCCUPIED ON ACCOUNT OF DOMESTIC AND BUSINES S PROBLEMS. THE LOWER AUTHORITIES FOUND THAT THERE IS NO REASON ABLE CAUSE FOR NOT FILING THE AUDIT REPORT WITHIN THE EXTENDED DUE DAT E OF 31.10.2013 AND CONFIRMED THE MINIMUM PENALTY LEVIED U/S.271B OF T HE ACT AT ` 9,18,237/-. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN OUR OPINION, IN THIS CASE THERE IS NO A SSESSMENT U/S.143(3) OF THE ACT. THE DEPARTMENT HAS ACCEPTED THE RETURN OF INCOME AS THE TOTAL INCOME OF ASSESSEE, THEN THERE IS NO REVENUE LOSS TO THE DEPARTMENT, IF THE ASSESSEE HAS FILED T HE AUDIT REPORT ON 29.01.2015. FURTHER THE ASSESSEE HAS EXPLAINED THAT IT HAS OBTAINED THE AUDIT REPORT WITHIN THE DUE DATE I.E.19.08.2013 , BUT FILED IT BELATEDLY ON 29.01.2015. THE REASONS EXPLAINED BY T HE ASSESSEE IS THAT ORIGINAL AUDIT REPORT OBTAINED BY THE ASSESSEE IS MISPLACED AND FAILED TO OBTAIN ANOTHER COPY OF AUDIT REPORT FROM THE AUDITOR. IN OUR OPINION, THE NON-FILING OF AUDIT REPORT, IT IS ONLY TECHNICAL/VENIAL BREACH OF THE CONTRACT AND THIS IS NOT A CASE TO LEVY OF P ENALTY U/S.271B OF THE ITA NO. 2403/MDS/2016 4 ACT. ACCORDINGLY, WE ARE INCLINED TO DELETE THE PE NALTY LEVIED BY THE LOWER AUTHORITIES. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON 21 ST NOVEMBER, 2016 AT CHENNAI. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 21 ST NOVEMBER, 2016. K S SUNDARAM. , ' $(-. /.( / COPY TO: 1 . ! / APPELLANT 3. & 0( () / CIT(A) 5. .3 4 $(5 / DR 2. $% ! / RESPONDENT 4. & 0( / CIT 6. 4 6 7 ' / GF