Ramesh Kumar, Bhiwani V. ACIT, New Delhi

ITA 2579/DEL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7082 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 28-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 31-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Assessee Lawyers: SHYAM SUNDER MANGLA
• Keywords: Reasonable cause; Assessment record
• Section: 273B; 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELH I F BENCH BEFORE SHRI A.D.JAIN, JM & SHRI A.N. PAHUJA, AM ITA NO. 2579 /DEL/201 0 ASSESSMENT YEAR:2004-05 DATE OF HEARING:15.7.11 DATE OF DRAFTING:20.7.11 SHRI RAMESH KUMAR HOUSE NO.B-8/97-98,SECTOR - 3,ROHINI,NEW DELHI V/S . ACIT CIRCLE- 22(1),NEW DELHII [PAN:A FNPR3121D] (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI SHYAM SUNDER MANGLA, AR REVENUE BY:- SMT. PRATIMA KAUSHIK, DR DATE OF HEARING:- 28-10-2011 DATE OF PRONOUNCEMENT:- 28-10-2011 O R D E R A.N.PAHUJA:- THIS APPEAL BY THE ASSESSEE FILED ON 31.5.2010 AGA INST AN ORDER DATED 16.3.2010 OF THE LD. CIT (APPEALS)-XXIII, NEW DELHI, RAISES THE FOLLOWING GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A HAS ERRED IN LAW AND ON FACTS IN FRAMING THE APPELLATE ORDER FOR PENALTY U/S 271B. 2. THAT THE ORDER PASSED BY, THE LD.CIT(A) IS A NO N-SPEAKING ORDER AND DEVOID OF APPLICATION OF MIND. 3. IN ANY VIEW OF THE MATTER AND IN ANY CASE THE OR DER UNDER APPEAL IS BAD IN LAW AND AGAINST CIRCUMSTANCES OF T HE CASE. . 4. YOUR APPELLANT CRAVES LEAVE TO ADD, MODIFY, AM END OR DELETE ANY OF THE GROUNDS OF APPEAL, AT THE TIME OF HEARIN G AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. ADVERTING FIRST TO THE GROUND NO. 1 IN THE APPEAL, FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT ASSESSMENT IN THIS CASE WA S COMPLETED ON 27.12.2006 ITA NO.2579/AHD/2010 2 U/S 143(3) OF THE INCOME-TAX ACT,1961[HEREINAFTER R EFERRED TO AS THE ACT] IN PURSUANCE TO RETURN DECLARING INCOME OF RS.10,30,89 4/- FILED ON 1-11-2004 .SINCE THE TURNOVER OF THE ASSESSEE EXCEEDED RS. 40 LACS A ND THE ASSESSEE DID NOT FILE PRESCRIBED AUDIT REPORT, IN ACCORDANCE WITH PROVISI ONS OF SEC. 44AB OF THE ACT, ALONG WITH TRADING ACCOUNT, PROFIT AND LOSS ACCOUNT AND THE BALANCE SHEET ON OR BEFORE THE DUE DATE FOR FILING OF RETURN, PENALTY P ROCEEDINGS U/S 271B OF THE ACT WERE INITIATED. IN RESPONSE TO A SHOWCAUSE NOTICE BEFORE LEVY OF PENALTY U/S 271B OF THE ACT, THE ASSESSEE REPLIED THAT THE HE HAD SUBMITTED BALANCESHEET AUDIT REPORT ETC. FOR THE AY 2003-04 IN ADDITION T O BALANCE SHEET, PROFIT AND LOSS ACCOUNT, AUDIT REPORT FOR THE AY 2004-05 ALONG WITH RETURN FOR THE YEAR UNDER CONSIDERATION FOR THE FIRST TIME IN DELHI AND EAR LIER RETURNS WERE FILED IN HARYANA .SINCE NO INFORMATION WAS RECEIVED FOR NON-SUBMISS ION OF RECORDS, NO PENALTY CAN BE LEVIED, THE ASSESSEE PLEADED. INTER ALIA, A PHOTOCOPY OF AUDIT REPORT FOR THE AY 2004-05 ALONG WITH LETTER DATED 22.11.2006 F ILED DURING THE ASSESSMENT PROCEEDINGS, WAS ALSO SUBMITTED. HOWEVER, THE ASSES SING OFFICER[AO IN SHORT] DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE SINC E THE ASSESSEE ENCLOSED AUDIT REPORT FOR THE FY 2001-02 ALONG WITH THE RETU RN FOR THE YEAR UNDER CONSIDERATION. SINCE THE TURNOVER OF THE ASSESSEE EXCEEDED RS.40,00,000/- AND THE ASSESSEE DID NOT GIVE ANY REASON FOR NOT FILIN G THE PRESCRIBED AUDIT REPORT U/S 44AB OF THE ACT FOR THE YEAR UNDER CONSIDERATIO N ON OR BEFORE THE DUE DATE FOR FILING OF RETURN, THE AO IMPOSED A PENALTY OF RS. 1 LAC U/S 271B OF THE ACT. 3. ON APPEAL, THE LD. CIT(A) UPHELD THE FINDINGS OF THE AO IN THE FOLLOWING TERMS: I HAVE GONE THROUGH THE IMPUGNED ORDER AS WELL AS THE SUBMISSIONS MADE BY THE LD. AR OF THE ASSESSEE. THE ASSESSMENT FOLDER H AS ALSO BEEN PERUSED..IT IS OBSERVED THAT FOR THE ASSESSMENT YEAR 2004-05, THE ASSESSEE HAD FILED THE RETURN OF INCOME, VIDE ACKNOWLEDGEMENT NO. 22520005 19 IN THE SARAL FORM VIDE ITS-2D.FIVE DOCUMENTS WERE ATTACHED ALONG WITH RETU RN OF INCOME ARE (I) COMPUTATION OF TOTAL INCOME(II)TDS CERTIFICATE(III) AUDIT REPORT UNDER SECTION 44AB(IV) BALANCE SHEET AND (V) PROFIT & LOSS ACCOUN T. ON FURTHER PERUSAL OF THE SAID ANNEXURES, IT IS OBSERVED THAT THE COMPUTATION OF TOTAL INCOME WAS FOR THE YEAR ENDED 31.3.2004.HOWEVER, THE AUDIT REPORT UNDE R SECTION 44AB IN FORM NO. 3CB WAS FOR THE YEAR ENDING 31.3.2002(AY 2002-03).T HIS REPORT HAS BEEN SIGNED BY NITIN KUMAR GUPTA ON 28.10.2002.FURTHER, FORM NO . 3CD WHICH HAS BEEN ITA NO.2579/AHD/2010 3 SIGNED BY THE SAME NITIN GUPTA & ASSOCIATES IS ALSO FOR THE YEAR ENDING 31.3.2002(AY 2002-03).THIS HAS BEEN SIGNED ON 28.10 .2002.THUS, THE ASSESSEES PLEA THAT THE AUDIT REPORT HAD BEEN FILE D ALONG WITH THE RETURN IS INCORRECT. AS SUCH,THE LEVY OF PENALTY TO THE TUNE OF RS.1,00,000/- UNDER SECTION 271B IS UPHELD. THE ASSESSEE FAILS IN GROUNDS OF AP PEAL NO.1 & 2 N 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LD. AR ON BEHALF OF THE ASS ESSEE REITERATED THEIR SUBMISSIONS BEFORE THE LD. CIT(A) WHILE THE LD. DR INVITED OUR ATTENTION TO THE ASSESSMENT FOLDER AND CONTENDED THAT SINCE THE ASS ESSEE DID NOT FILE PRESCRIBED AUDIT REPORT IN TERMS OF PROVISIONS OF SECTION 44AB OF THE ACT ON OR BEFORE THE DUE DATE FOR FILING THE RETURN FOR THE YEAR UNDER CONS IDERATION AND NO REASONS HAVE BEEN ADDUCED FOR HIS FAILURE TO FILE SUCH AUDIT REPORT AND INSTEAD THE ASSESSEE ENCLOSED AUDIT REPORT DATED 28.10.2002 FOR THE PERI OD RELEVANT TO AY 2002-03 ALONG WITH THE RETURN FOR THE YEAR UNDER CONSIDERAT ION, THE LD. CIT(A) RIGHTLY UPHELD THE LEVY OF PENALTY,. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. ON PERUSAL OF RELEVANT ASSESSMENT RECORDS FOR THE Y EAR UNDER CONSIDERATION, WE FIND THAT THE ASSESSEE FILED THE RETURN OF INCOME IN THE SARAL FORM, ENCLOSING FIVE DOCUMENTS REFERRED TO BY THE LD. CIT(A) IN HIS ORD ER. THE RELEVANT ANNEXURES, REVEALED THAT THE ASSESSEE DID NOT FILE THE PRE SCRIBED AUDIT REPORT FOR THE PERIOD ENDING 31.3.2004 ON OR BEFORE THE DUE DATE F OR FILING THE RETURN FOR THE YEAR UNDER CONSIDERATION AND INSTEAD, THE AUDIT REPORT U NDER SECTION 44AB IN FORM NO. 3CB WAS ENCLOSED FOR THE YEAR ENDING 31.3.2002(AY 2 002-03).THIS REPORT HAS BEEN SIGNED BY NITIN KUMAR GUPTA ON 28.10.2002.EVEN THE FORM NO. 3CD WHICH HAS BEEN SIGNED ON 28.10.2002 BY THE SAME M/S NITI N GUPTA & ASSOCIATES, IS ALSO RELEVANT FOR THE YEAR ENDING 31.3.2002(AY 2002 -03). THE IMPUGNED ORDER REVEALS THAT THE ASSESSEE DID NOT ADDUCE ANY REASON S FOR HIS FAILURE TO SUBMIT THE PRESCRIBED AUDIT REPORT ON OR BEFORE THE DUE DA TE FOR FILING OF THE RETURN FOR THE YEAR UNDER CONSIDERATION. TO A SPECIFIC QUERY BY TH E BENCH , THE LD. AR DID NOT ADDUCE ANY REASONS AS TO WHY AUDIT REPORT FOR THE PERIOD ENDING 31.3.2002 WAS ENCLOSED WITH THE RETURN FOR THE AY 2004-05 AND WHY PRESCRIBED AUDIT REPORT ITA NO.2579/AHD/2010 4 RELEVANT FOR THE YEAR UNDER CONSIDERATION ,IN TERMS OF PROVISIONS OF SECTION 44AB OF THE ACT , WAS NOT FILED WITHIN THE STIPULATED TI ME.. SINCE THE ASSESSEE DID NOT GIVEN ANY REASONABLE CAUSE WITHIN THE MEANING OF PR OVISIONS OF SEC. 273B OF THE ACT EITHER BEFORE THE AO/LD. CIT(A) OR EVEN BEFORE US, FOR NON-FILING OF THE PRESCRIBED AUDIT REPORT U/S 44AB OF THE ACT ON OR BEFORE THE DUE DATE FOR FILING OF RETURN FOR THE YEAR UNDER CONSIDERATION, WE HAVE NO HESITATION IN UPHOLDING THE LEVY OF PENALTY U/S 271B OF THE ACT. A MERE GLANCE AT THE IMPUGNED ORDER REVEALS THAT ORDER OF THE LD. CIT(A) IS SPEAKING AND HAS GI VEN SUFFICIENT REASONS FOR UPHOLDING THE LEVY OF PENALTY. IN VIEW THEREOF AND IN THE ABSENCE OF ANY BASIS ,WE ARE NOT INCLINED TO INTERFERE. CONSEQUENTLY, GROUND NOS.1 & 2 IN THE APPEAL ARE DISMISSED.. 6. GROUND NO.3 IN THE APPEAL BEING GENERAL IN NAT URE NOR ANY SUBMISSIONS HAVING BEEN MADE BEFORE US ON THIS GROUND, DOES NOT REQUIRE ANY SEPARATE ADJUDICATION WHILE NO ADDITIONAL GROUND HAVING BEEN RAISED IN TERMS OF THE RESIDUARY GROUND NO. 4 IN THE APPEAL, ACCORDINGLY, THESE GROUNDS ARE ALSO DISMISSED. 7. IN THE RESULT, APPEAL IS DISMISSED . ORDER PRONOUNCED IN OPEN COURT SD/- SD/- (A.D.JAIN) JUDICIAL MEMBER (A.N. PAHUJA) ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO : THE ASSESSEE/ ACIT CIRCLE-22(1),NEW DELHI/ THE CIT CONCERNED/ CIT (APPEALS)-XXIII, NEW DELHI / DR-F BENCH,NEW DELHI/ GUARD FILE BY ORDER DEPUTY REGISTRAR OF ITAT, DELHI BENCH