Neeta Dineshkumar Salecha, Ahmedabad V. The ITO, Ward-5(3)(4), Ahmedabad

ITA 2492/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9363 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 13-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(2)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD - BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO.2492/AHD/2017 / ASSTT.YEAR : 2014-2015 NEETA DINESHKUMAR SALECHA C-185, 2 ND FLOOR, SUMEL BUSINESS PARK-2, KANKARIA ROAD AHMEDABAD 380 022. VS. ITO, WARD-5(3)(4) AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI SUNIL MALOO, AR REVENUE BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING : 30/09/2019 / DATE OF PRONOUNCEMENT: 01/10/2019 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)- 5, AHMEDABAD DATED 28.8.2017 PASSED FOR THE ASSESSM ENT YEAR 2014-15. 2. SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.C IT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.1,50,000/- IMPOSED BY THE AO UNDER SECTION 271B OF THE INCOME TAX ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HER RETURN OF INCOME ON 29.11.2014 DECLARING TOTAL INCOME AT RS.5 ,00,180/-. THE FACTS EMERGING OUT FROM THE RECORD INDICATE THAT AT THE R ELEVANT TIME, THE ASSESSEE WAS RUNNING TWO PROPRIETORSHIP CONCERNS VIZ. M/S.SH REE SHARADA FEB TEX ITA NO.2492/AHD/2017 2 AND M/S.GANESH TRADING COMPANY. SHE HAS FILED TAX AUDIT REPORT UNDER SECTION 44AB WITH REGARD TO THE ACCOUNT OF M/S.SHR EE SHARADA FEB TEX. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDING S, IT CAME TO THE NOTICE OF THE AO THAT THE ASSESSEE IS PROPRIETOR OF M/S.GANESH TRADING COMPANY ALSO, WHICH WAS HAVING BANK ACCOUNT WITH PR OGRESSIVE MERCANTILE COOPERATIVE BANK LTD. QUA THIS FIRM, THE ASSESSEE HAS NOT GOT ACCOUNT AUDITED. THE AO PASSED ASSESSMENT ORDER ON 30.12.2016 UNDER SECTION 143(2) OF THE ACT. HE INITIATED PENALTY PR OCEEDINGS FOR NOT GETTING THE ACCOUNTS AUDITED WITH REGARD TO M/S.GANESH TRAD ING COMPANY. ULTIMATELY, AFTER HEARING THE ASSESSEE HE IMPOSED A MINIMUM PENALTY OF RS.1,50,000/-. APPEAL TO THE CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE CONTE NDED THAT NO DOUBT THE ASSESSEE HAS MAINTAINED ACCOUNT FOR M/S.SHREE SHARA DA FEB TEX. AUDIT REPORT SUBMITTED ALONG WITH RETURN. THE AO HAS NOT DISPUTED THIS FACT, AND THE LD.COUNSEL FOR THE ASSESSEE TOOK US THROUGH FIR ST PAGE OF THE ASSESSMENT FOR BUTTRESSING HIS CONTENTION. WITH REGARD TO M/S .GANESH TRADING COMPANY HE SUBMITTED THAT BY MISTAKE THE BANK ACCOU NT MAINTAINED BY THIS CONCERNED REMAINED TO BE INCLUDED IN THE AUDIT ACCO UNTS, AND ITS ACCOUNTS WERE NOT AUDITED BECAUSE BOOKS WERE NOT MAINTAINED. ACCORDING TO THE LD.COUNSEL FOR THE ASSESSEE, IF THE BOOKS ARE NOT B EING MAINTAINED, THEN IT IS IMPOSSIBLE FOR AN ASSESSEE TO GET THEM AUDITED. TH EREFORE, THERE SHOULD NOT BE ANY PENALTY UNDER SECTION 271B UPON THE ASSESSEE . HE RELIED UPON THE FOLLOWING DECISIONS: I) SHRI RAJESHBHAI HIRABHAI PATEL VS. ITO, ITA NOS.359 & 455/RJT/2014 (AHD-TRIBUNAL); ITA NO.2492/AHD/2017 3 II) SHRI UDAYSHANKAR NARENDRAPRASAD VS. ITO, ITA NO.223/AHD/2-13 (AHD-TRIB.); III) PARAGKUMAR MAFATLAL SHAH VS. ITO, ITA NO.2081/AHD/2 011 (AHD-TRIB); IV) MUKESH G. JASWANI VS. ITO,ITA NO.515/AHD/2008 (AHD- TRIB) V) GURINDER KAHLON VS. ITO, ITA NO.642/AHD/2015 (AHD-T RIB) 5. ON THE OTHER HAND, THE LD.DR CONTENDED THAT FOR EXONERATING ONE PENALTY, THE ASSESSEE CANNOT TAKE PLEA OF ANOTHER D EFAULT. ON THE ONE HAND, SHE HAS NOT DISCLOSED THE ACCOUNTS TO THE DEPARTMEN T, AND ON THE OTHER HAND SHE IS TRYING TO ABSOLVE HERSELF FROM LEVY OF PENAL TY UNDER THE ARGUMENT THAT THE ACCOUNTS WERE NOT MAINTAINED. 6. WE HAVE DULY CONSIDERED RIVAL SUBMISSIONS AND GO NE THROUGH THE RECORD CAREFULLY. FOR NOT MAINTAINING ACCOUNTS, PE NALTY IS REQUIRED TO BE IMPOSED UNDER SECTION 271A. THE LD.AO OUGHT TO HAV E INITIATED PENALTY UNDER THIS SECTION. BUT ONCE THE ASSESSEE HAS BEEN SUBMITTING THAT SHE IS NOT MAINTAINING ANY ACCOUNTS FOR ANY CONCERN, THEN SHE CANNOT BE EXPECTED TO GET THEM AUDITED. IT IS A PLAUSIBLE ARGUMENT. JUDGMENTS RELIED UPON BY THE LD.COUNSEL FOR THE ASSESSEE ARE TO THIS EFFECT. WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE PENALTY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 1 ST OCTOBER, 2019 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/10/2019