Shri Jitendrasinh J. Rathod, U T OF D & NH V. The Income tax Officer, Silvassa Ward, SILVASSA

ITA 2490/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2105 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 03-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P RASTOGI
• Assessee Lawyers: A GOPALKRISHNAN

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.2490/AHD/2016/SRT / ASSESSMENT YEAR: 2012-13 JITENDRASINH J. RATHOD, 11, SHIVAM BUNGLOW, SUNDERVAN SOCIETY, SILVASA, UT OF D. & NH. [PAN: ABFPR 9748C] VS. INCOME TAX OFFICER, SILVASA WARD, SILVASSA ( / APPELLANT) ( !' /RESPONDENT) / ASSESSEE BY : SHRI A.GOPALKRISHNAN, C.A., /RESPONDENT BY : SHRI R.P.RASTOGI, SR. D.R /DATE OF HEARING : 17-04-2018 /DATE OF PRONOUNCEMENT : 20-04-2018 / ORDER PER C.M.GARG, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), VALSAD (CIT( A) FOR SHORT) DATED 02.07.2016 FOR THE ASSESSMENT YEAR (A.Y) 2012-13 PA SSED IN THE FIRST APPEAL NO. CIT(A)/VLS/174/15-16/471. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS: 1. THE ORDER IMPOSING PENALTY U/S. 271B OF THE ACT IS CONTRARY TO THE FACTS OF THE CASE AND PREJUDICIAL TO THE LAW. 2. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES O F THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT NOT TO HAVE CONFIRMED THE ACTION OF THE LEARNED INCOME TAX OFFI CER IMPOSING THE SAID 2 ITA NO.2490/AHD/2016/SRT (A.Y: 2012-13) SHRI JITENDRASINH J. RATHOD PENALTY. THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO THE FACTS OF THE CASE AND DESERVES T O BE DELETED. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBU NAL. THE ASSESSEES REPRESENTATIVE (AR) SUBMITTED COPY OF THE RETURN FI LED BY THE ASSESSEE FOR A.Y 2012-13 IN ITR-4 AND SUBMITTED THAT THE ASSESSE E IN COLUMN (E) STATED THE DATE OF AUDIT REPORT AS 26.09.2012, WHICH SHOWS THAT THE ASSESSEE HAS NOT CONTROVERTED THE PROVISIONS OF S. 44AB OF THE I NCOME TAX ACT, 1961 (FOR SHORT THE ACT) AS THE ASSESSEE GOT AUDITED HIS AC COUNTS PRIOR TO SUBMISSION OF ITR-4 FOR THE RELEVANT PERIOD, THEREFORE, ASSESS ING OFFICER (AO) WAS NOT CORRECT IN IMPOSING PENALTY U/S. 271B OF THE ACT AN D THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE PENALTY. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) STRONGL Y SUPPORTED THE PENALTY ORDER AND FIRST APPELLATE ORDER AND SUBMITT ED THAT THE ASSESSEE DID NOT FURNISH AUDIT REPORT ELECTRONICALLY/MANUALLY ON OR BEFORE PRESCRIBED DATE WHICH WAS 30.09.2012, THEREFORE, THE AO WAS RIGHT I N IMPOSING PENALTY U/S. 271B OF THE ACT, AND THE FIRST APPELLATE AUTHORITY WAS ALSO QUITE CORRECT IN UPHOLDING THE SAME. HOWEVER, ON SPECIFIC QUERY FRO M THE BENCH, THE LD. DR COULD NOT CONTROVERT THE FACT THAT THE ASSESSEE WHI LE FILING RETURN IN ITR-4 SUBMITTED DATE OF AUDIT REPORT AS 26.09.2012 AND AT THAT POINT OF TIME THE ASSESSEE FILED E-RETURN AND THERE WAS NO POSSIBILIT Y TO FILE COPY OF AUDIT REPORT ALONG WITH RETURN OF INCOME. 3 ITA NO.2490/AHD/2016/SRT (A.Y: 2012-13) SHRI JITENDRASINH J. RATHOD 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, WE ARE OF THE VIEW THAT WHEN WHILE FILING RETURN FOR AY 2012-13 T HE ASSESSEE STATED THAT HE GOT AUDITED THE ACCOUNTS FROM THE AUDITOR AND DATE OF AUDIT REPORT WAS STATED AS 26.09.2012, AND IT IS ALSO NOT IN DISPUTE THAT W HILE FILING E-RETURN THROUGH ELECTRONIC MODE IT WAS NOT EXPECTED AND POSSIBLE TO FILE COPY OF THE AUDIT REPORT ALONG WITH THE RETURN, THEREFORE, ASSESSEE C ANNOT BE ALLEGED THAT HE DID NOT FILE AUDIT REPORT WITH THE RETURN OF INCOME . IT IS ALSO PERTINENT TO NOTE THAT AS PER CIRCULAR NO.3/2009 DATED 21.05.2009 PAR A 7 (I), THE AUDIT REPORT WAS NOT REQUIRED TO BE ATTACHED WITH THE RETURN OR REQUIRED TO BE FURNISHED SEPARATELY ANY TIME BEFORE OR AFTER THE PRESCRIBED DUE DATE AND IT WAS CLARIFIED BY THE CBDT THAT THE ASSESSEE SHOULD RETA IN AUDIT REPORT WITH HIMSELF. IN THIS SITUATION, PENALTY U/S. 271B OF TH E ACT CANNOT BE IMPOSED ON THE ASSESSEE BY ALLEGING THAT THE ASSESSEE HAS CONT ROVERTED PROVISIONS OF S. 44AB OF THE ACT AS HE DID NOT FURNISH AUDIT REPORT ELECTRONICALLY/MANUALLY ON OR BEFORE PRESCRIBED DATE OF FILING OF RETURN. THU S, WE HAVE NO HESITATION TO HOLD THAT THE AO IMPOSE PENALTY ON INCORRECT APPREC IATION OF FACTS AND WITHOUT ANY JUSTIFIED REASON AND LD. FIRST APPELLAT E AUTHORITY WAS NOT RIGHT IN UPHOLDING THE SAME. ACCORDINGLY, SOLE GROUND OF AS SESSEE IS ALLOWED AND AO IS DIRECTED TO DELETE THE PENALTY. 4 ITA NO.2490/AHD/2016/SRT (A.Y: 2012-13) SHRI JITENDRASINH J. RATHOD 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 0 TH APRIL, 2018. / SURAT ; DATED : 20 TH APRIL, 2018 EDN ! $ / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. # ( ) / THE CIT (A) - 3, SURAT; 4. PRL. CIT-III, SURAT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // ) / ASSISTANT REGISTRAR , / ITAT, SURAT SD/ - SD/ - ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER