Omprakash Gindodia (HUF), Hyderabad V. Income Tax Officer, Ward-10(1), Hyderabad

ITA 245/Hyd/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8276 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 01-04-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C V PAWAN K UM
• Assessee Lawyers: B SATYANARAYANA MURTHY
• Keywords: Reasonable cause; Set aside
• Section: 273B; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A , HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER I.T.A. NO. 24 5 /HYD/201 8 ASSESSMENT YEAR: 20 13 - 1 4 SRI OMPRAKASH GINDODIA (HUF), HYDERA B AD [PAN: A A C HG 7082E ] VS INCOME TAX OFFICER , WARD - 10 ( 1 ) , HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI B. SATYANARAYANA MURTHY , AR FOR REVENUE : S HRI C.V. PAWAN K UM A R , DR DATE OF HEARING : 01 - 0 4 - 201 9 DATE OF PRONOUNCEMENT : 12 - 0 4 - 201 9 O R D E R PER S. RIFAUR RAHMAN, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 6 , HYDERABAD , DATED 13 - 11 - 201 7 , FOR THE AY . 20 13 - 1 4 . 2. BRIEF FACTS OF THE CASE AR E THAT THE ASSE SS EE FILED ITS RETURN OF INCOME FOR THE AY. 2013 - 14 ON 26 - 09 - 2013 DECLARING A TOTAL INCOME OF RS. 13,390/ - . T HE GROSS RECEIPTS OF THE ASSESSEE DURING THE YEAR IS RS. 1.05 CRORES AND AS PER SECTION 44AB OF THE OF THE INCOME TAX ACT [ACT] , ASS ESSEE IS REQUIRED TO FURNISH THE AUDI T REPORT ALONG WITH RETURN OF INCOME BEFORE ITA NO. 24 5 /HYD/201 8 : - 2 - : 31 - 10 - 2013. S INCE THE ASSESSEE HAS NOT FILED THE AUDI T REPORT BY E - FILING OR BY A HARD COPY BEFORE THE ASSESSING OFFICER , A NOTICE WAS ISSUED TO THE ASSESSEE ON 04 - 0 9 - 2014 AS TO WHY PENALTY U/S. 271B SHOULD NOT BE LEVIED. I N RESPONSE TO SUCH NOTICE, ASSESSEE FILED A REPLY AS BELOW: WITH REFERENCE TO THE NOTICE U/S. 271B, DATED 04.09.2014 , WE ARE INSTRUCTED TO INFORM YOU THAT, F OR THE ASSESSMENT YEAR 2013 - 14 THE ASS ESSEE SRI OMPRAKASH GINDODIA (HUF) PROP: SHAKTI AGENCIES FILED HIS RETURN OF INCOME ON 26.09.2013 UNDER E - FILING ACK NOWLEDGEMENT NO. 79097 0811260913 [INADVERTENTLY FILED IN THE NAME OF SH AKTI AGENCIES INSTEAD OF OMPRA KASH G INDODIA] UNDER PA NO. AAC HG 7082E, ALONG WIT H TAX AUDIT REPORT. COPY OF THE RETURN OF INCOME , ACKNOWLEDGEMENT, AUDIT REPORT IN 3CB AND 3CD, ALONG WITH BALANCE SHE ET, PROFIT & LOSS ACCOUNT AND OTHER SCHEDULES ARE ENCLOSED HEREWITH FOR YOUR READY REFERENCE. SINCE THE ASSESSEE HAS ALREADY FI LED THE A U DIT REPORT AND OTHER PARTICULARS, IT IS REQUESTED THAT T HE PENAL PROCEEDINGS INITIATED U/S. 271B MAY P LEASE BE DROPPED . 3. THE ASSESSING OFFICER REJECTED THE CONTENTION OF ASSESSEE AND LEVIED P E N A L TY U/S. 271B OF THE ACT BY OBTAINING PROPER APPR OVAL OF J C IT. 4 . AGGRIEVED WITH THE ABOVE ORDER, ASSESSEE PREFERRED AN AP PEAL B E FORE THE CIT(A ) . 5 . AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE , LD.CIT(A) OPINED THAT IT IS CLEAR FROM THE RECORD SUBMITTED BY THE ASSESSEE THAT ASSESSEE HAS NOT FILED T HE AUDIT R EPORT ELECTRONICALLY BEFORE THE SPECIFIED DUE DATE. F URTHER, HE STATED THAT AS PER BOAR D S NOTIFICATION NO. 34/2013 , FILING OF STATUTORY AUDIT RE PO R T ALONG WITH RETURN OF INCOME MANDATORILY BEFORE ITA NO. 24 5 /HYD/201 8 : - 3 - : THE SPECIFIED DATE FOR FILING OF RETURN OF INCOM E . F URTH E R HE STATED THAT AS PER RELAXED NOTIFICATION FROM CBDT, ASSESSEE IS REQUIRED TO FURNISH THE TAX AUDIT REPORT ELECTRONICALLY WITHIN THE SPE CIFIED DATE I.E., 30 TH SEPTEMBER, 2013, BUT DU E TO D IFFICULTIE S FACED IN UP LOADING THE SAME WITHIN THE DUE DATE, T HE ASSESS E E IS REQUIRED TO FURNISH THE SAME MANUALLY BEFORE THE ASSESSING OFFIC ER WITHIN THE SPECIFIED DATE I.E., 30 TH SEPTEMBER, 2013. H OWEVER, THE CBDT HAS EXTEN DED THE SPECIFIED DATED I. E., 31 - 10 - 2013 EVEN THEN, ASSESSEE HAS NOT UTILISED THE OPPORTUNIT Y AN D HAS NOT FULFILLED THE REQUIREMENT OF FURNISHIN G THE AUDIT REPORT ELECTRONICALLY AND EVEN AS ON THE DATE OF MAKING THE STATEMENT BEFORE HIM I.E., ON 08 - 11 - 2017 OR AS ON THE DATE OF PASSING HIS ORDER , ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT HE HAS COMPLIED WITH THE PROVISIONS U/S. 44AB OF THE ACT . A CCORDING TO HIM, THE PENALTY PROCEEDINGS U/S. 271B OF THE A CT ARE ATTRACTED UNDER TWO INDE PENDENT CIRCUMSTANCES I) F AIL E D TO GET ACCOUNTS AUDITED WITHIN THE SPECIFIED DATE OR II) NON - FURNISHING OF THE AUDIT REPO RT WITHIN THE SPECIFIED DATE; 5.1. ACCORDING TO HIM - IN THE INSTANT CASE , THE A O HAS LEVIED PENALTY BY INVOKING THE SECOND LIMB I.E., NON - FURNISHING OF THE AUDIT RE PO RT WITHIN THE SPECIFIED DATE . EVEN DURING THE COURSE OF APPELLATE PROCEED INGS, THE ASSESSEE HAS FAILED TO ADDUCE ANY EVIDENCE TO SHOW THAT THE AUDIT RE PORT WAS FILED BEFORE THE IN COME TAX AUTHORITIES WITHIN THE SP ECIFIED DATE I.E., ELECTRONICALLY BY A V A IL ING THE EXTENDED SPECIFIED DATE I.E. ON OR BEFORE 31.10.2013 OR MANUALLY B EFORE THE ASSESSING OFFICER ON OR BEFOR E 30.09.2013 ITA NO. 24 5 /HYD/201 8 : - 4 - : 5.2. TH EREFORE, CIT(A) CONCLUDED A S BELOW: 19.0 CONCLUSION: 1) THE ASSESSEE HAS NOT FURNISHED THE STATUTORY AUDIT RE PORT U/S. 44AB OF THE ACT IN FORM 3CB ELECTRONICALLY WITHIN THE SPECIFIED DATE I.E. 30.09.2013 OR WITHIN THE EXTENDED SPECIFIED DATE I.E. 31.10.2013. 2) T HE ASSESSEE HAS NOT FURNISHED THE HA RD COPY OF THE STATUTORY AUDIT REPORT U/S. 44A B OF THE ACT MANUALLY BEFORE THE ASSESSING OFFICER CONCERNED BY THE SPECIFIED DATE I.E. 30.09.2013. 3) THE AS SESSEE HAS NOT ADDUCED ANY EVIDENCE WITH COGENT REAS ONS TO DEMONSTRATE THAT THERE WAS A REASONABLE CAUSE ON HIS PART FOR NOT FILING THE AUDIT RE PORT U/S. 44AB OF THE ACT EITHER ELECTRONICALLY OR MANUALLY WITHIN THE SPECIFIED DATES MENTIONED ABOVE. THUS, T HE PENALTY ORDER PASSED BY THE A O U/S. 271B OF THE ACT IS CONFIRMED AND THE GROUNDS OF APPEAL FILED BY T HE ASSESSEE ARE DISMISSED . 5 . 3. AGGRIEVED, ASSESSEE PREFERRED AN APPEA L BEFORE U S RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE HONO URABLE COMMISSIONER OF INCOME TAX(APPEALS), IS AGAINST THE FACTS OF THE CASE AND THE PROVISIONS OF LAW. 2. THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN SUSTAINING THE PENALTY OF RS.52,690/ - LEVIED U/ S.271 B OF THE INCOME TAX ACT . 3. THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE SEEN THAT ALL THE DETAILS RELATIN G TO THE COMPLETION OF THE TAX AUDIT WERE GIVEN CONTEMPORANEOUSLY IN THE RETURN FILED ON 26.09.2013. 4. THE HONOURABLE COMMISSIONER OF INCOME TAX (APP EALS) SHOULD HAVE APPRECIATED THAT IN CASE THE TAX AUDIT REPORT IS NOT FOUND ONLINE, IT MAY BE ONLY ON A CCOUNT OF TECHNICAL MISTAKE OCCURRED IN UPLOADING THE RETURN AND TAX AUDIT REPORT. ITA NO. 24 5 /HYD/201 8 : - 5 - : 5. THE HONOURABLE COMMISSIONER O F INCOME TAX (APPEALS) SHOULD HAVE SEEN THAT THE APPELLANT ALWAYS HAS BEEN GETTING HIS ACCOUNTS AUDITED IN TIME AND HAS BEEN FILING THE SAM E ALONG WITH THE RETURNS OF INCOME REGULARLY FOR SEVERAL YEARS. 6. THE HONOURABLE COMMISSIONER OF INCOME TAX (APP EALS) SHOULD HAVE SEEN THAT THE TAX A UDIT WAS COMPLETED, THE AUDIT REPORT WAS FRAMED AND THAT THE TAX AUDIT REPORT WAS FURNISHED TO THE APPEL LANT BEFORE THE DUE DATE OF 30 TH SEPTEMBER, 2013. THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE S EEN THE DETAILS OF TAX AUDIT ARE FURN ISHED IN THE RETURN OF INCOME UPLOADED ON 26.09.2013. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, IT IS REQUESTED THAT THE PENALTY LEVIED U/S.271 B OF THE INCOME TAX ACT, 1961, BE SET ASIDE OR MODIFIED AS MAY BE DE EMED FIT . 6. BEFORE US, LD.AR SUBMITTED THAT ASSESSEE HAS FILED THE RETURN OF INCOME ON 26 - 09 - 2013 FO R WHICH ACKN OWLEDGEMENT OF THE RE TURN IS FILED IN PG.11 OF THE PAPER BOOK. I N THE RETURN OF INCOME ALSO ASSESSEE HAS FURNISHED THE DETAILS OF THE AUDIT OR AND DATE OF OBTAINING OF THE AUDIT REPORT I.E., ON 25 - 09 - 2013 (REFER PG.13 OF THE PAPER BOOK). FURT H ER, HE SUBMI TTED THAT THE UPLOADING OF THE RETURN OF INCOME AN D THE A UDIT REPORT WAS UPLOADED BY THE AUDITOR HIM SELF . I T MAY BE A TECHNICAL MISTAKE OCCU RRED IN UPLOADING THE RETURN OF INCOME AND TAX AUDIT RE PORT. I T IS IMPORTANT TO NO TE THAT ASSESSEE WAS R EGULARLY FIL ING THE RETURN OF INCOME , AFTER DUE TAX AUDIT O N THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE . LD.CIT(A) FAILED TO APPRECIATE THE DETAILS OF TAX AUDIT REPORT WHICH ARE ALREADY FURNISHED IN THE RETURN OF INCOME UP LOADED ON 26 - 09 - 2013 ITSELF. H E SUBM ITTED THAT ASSESSEE HAD COMP LIED WITH THE OBLIGATI ON OF GETTING THE TAX AUDIT DO NE AND GETTING HIS RETURN UPLOADED. T HE AR CONFIRMED TH AT THE OM ISSION OR COMMISSION ITA NO. 24 5 /HYD/201 8 : - 6 - : IN UPLOADING THE TAX AUDIT REPORT TOOK PLACE IN HIS OFFICE. T HEREFORE, AS FAR AS T HE ASSE SSEE IS CONCERNED, THERE IS A REASONABLE CAUSE TO DELETE THE PENALTY. 7. ON THE OTHER HAND, LD.DR SUBMITTED THAT THE ACTION OF THE ASSESSEE IS N OTHING BUT AFTER TH OUGHT AND HE SUPPORTED THE ORDER OF ASSESSING OFFICER AND CIT(A) FOR LEVY OF P ENAL TY. 8. CO NSIDERED THE RIVAL SUB M IS SIONS AND MATERIAL ON REC ORD. WE NOTICED THAT ASSESSEE HAS FILED THE RETURN OF INCOME ON 26 - 09 - 2013 WITH THE HELP OF HIS AUDITOR AND THE DETAILS OF COMPLETION OF TAX AUDIT U/S. 44AB OF THE ACT AND DETAILS O F THE AUDITOR, WHO HAS C OMPLETED THE TAX AUDIT AND RECORDED THE DATE OF AU DIT RE PORT AS 25 - 09 - 2013. A SSESSEE WAS UNDER THE IMPRESSION THAT THE TAX AUDIT R E PORT WAS FILED BY HIS AUDITOR ALONG WITH THE RETURN OF INCOME . A S PER THE CBDT NO TIFICATION, ASSESS EE HAS TO FILE THE AUDIT RE PORT ALONG WITH RETURN OF INCOME ELECT RONICALLY OR HE SHOULD FILE THE MANUAL AUDIT REPORT BEFORE THE ASSESSING OFFICER IN CASE O F DIFFICULTY. S INCE THE ASSESSEE WAS UNDER THE IMPRESSION THAT HIS AUDITOR HAS FILED THE AUDIT R E PORT ALO N G WITH RETURN OF I NCOME , HE HAS NOT MADE ANY EFFORT TO COMPLY WITH T HE NOTIFICATION ISSUED BY THE CBDT. T HE CASE OF THE ASSESSEE ALSO WAS NOT PICKED UP UNDER CASS , ASSESSEE SHOULD HAVE FILED THE STATUTORY AUDIT REPORT BE FORE THE ASSESSING OFFICER . LD .CIT(A) AND ASSESSING O FFICER SATISFIED THEMSELVES THAT ASSESSEE HAS NOT FILED THE AUDIT REPORT ELECTRONICALLY AND ALSO NOT FILED THE MANUAL AUDIT RE PO R T B EFORE THE SPECIF IED PERIOD AS PE R SECTION 44AB OF THE A C T. ITA NO. 24 5 /HYD/201 8 : - 7 - : 8.1. O N CAREFUL READING OF THE PAPERS S UBMITTED BEFORE US, WE NOTICE D THAT ASSESSEE RELIED ON THE ST A TUS OF SUBMI SSION O F RETURN OF INCOME AND UPLOADING OF THE AUDIT RE PORT BY THE AUDITORS HIMSE LF. T HE ASSESSE E HAS NOT MADE ANY EFFORT TO FILE MANUAL TAX AUDIT REPORT BEFORE ASSESSING OFFICER . I N OUR VIEW, ASSESSEE WA S UNDER THE I MPRESSION THAT HIS AUDITOR HAS COMPLI ED THE DUE PR OCEDURE AS PER SECTION 44AB OF THE ACT AND SECTION 139 OF THE ACT. FURTHER, IT IS NOTICED THAT IN REPLY TO THE PENALTY NOTICE DT. 04 - 09 - 2014 , ASSESSEE HAS FILED THE COPY OF THE AUDIT RE P ORT . IT CLEARLY INDICATES THAT ASSESSEE HAS THE COPY OF THE AUDIT REPORT IN HIS POSSESSION AND SIN C E HE WAS UNDER THE IMPRESSION THAT THE REPORT IS FILED BY HIS AUDITOR ALONG WITH THE RETURN OF INCOME , HE DID NOT MAKE EFFORT TO COMPLY WITH THE SPECIFIE D DATE REQUIREMENT. F ROM THE FACTS OF THE CASE, IT IS CLEAR THAT THERE IS A MISTAKE ON THE PART OF THE AUDITOR OF THE ASS ESSEE . I N OUR VIEW, T HI S CASE FALLS UNDER REASONABLE CAUSE FOR THE FAILURE ON T HE PART OF ASSESSEE U/S. 273B OF THE ACT. T HEREFORE, THE PENALTY L EVIED BY THE ASSESSING OFFICER IS ACCORDINGLY DELETED. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 12 TH APRIL , 201 9 . SD/ - SD/ - (P. MADHAVI DE VI ) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT M EMBER HYDERABAD, DATED 12 TH APR I L , 201 9 TNMM ITA NO. 24 5 /HYD/201 8 : - 8 - : COPY TO : 1. SRI OMPRAKASH GINDODIA (HUF), HYDERABAD. C/O. VENUGOPAL & CHENOY, CHARTERED ACCOUNTANTS, 4 - 1 - 889/16/2, TIL AK ROAD, HYDERABAD. 2. THE INCOME T AX OFFICER , WARD - 10 ( 1 ) , HYDERABAD . 3 . CIT(APPE ALS) - 6 , HY DERABAD . 4 . PR. CIT - 6 , HYDERABAD . 5 . D.R. ITAT, HY D ER ABAD. 6 . GUARD FILE.