Shri Mohd. Shakeel, Lakhimpur-Kheri V. Income Tax Officer, Lakhimpur-Kheri

ITA 261/LKW/2013

• Counselvise Citation: 26123714 RSA 2013
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-02-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 11-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B P YADAV

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.261/LKW/2013 ASSESSMENT YEAR:2008 - 09 MOHD. SHAKEEL, PROP. M/S BHARAT COLD DRINKS, GOLA, LAKHIMPUR KHERI. PAN:BDDPS0464D VS. INCOME TAX OFFICER, WARD - II, LAKHIMPUR KHERI. (APPELLANT) (RESPONDENT) ITA NO.262/LKW/2013 ASSESSMENT YEAR:2008 - 09 SHRI MADAN LAL VERMA, PROP. M/S SHANKER TRADING COMPANY, GOLA, LAKHIMPUR KHERI. PAN:ACRPV6586F VS. INCOME TAX OFFICER, WARD - II, LAKHIMPUR KHERI. (APPELLANT) (RESPONDENT) ITA NO.263/LKW/2013 ASSESSMENT YEAR:2008 - 09 MOHD. SHAKEEL, PROP. M/S BHARAT COLD DRINKS, GOLA, LAKHIMPUR KHERI. PAN:BDDPS0464D VS. INCOME TAX OFFICER, WARD - II, LAKHIMPUR KHERI. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI B. P. YADAV, ADVOCATE RESPONDENT BY SHRI AJAY KUMAR, D.R. DATE OF HEARING 25/02/2014 DATE OF PRONOUNCEMENT 1 1 / 0 4 / 2 0 1 4 2 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY DIFFERENT ASSESSEES AGAINST THE RESPECTIVE ORDERS OF CIT(A) CONFIRMING THE PENALTY LEVIED U/S 271B OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). SINCE THE FACTS OF ALL THESE CASES ARE ALMOST SIMILAR, EXCEPT THE QUANTUM OF PENALTY, WE PREFER TO ADJUD ICATE THEM TH ROUGH THIS CONSOLIDATED ORDER AS THEY WERE HEARD TOGETHER. 2. THE FACTS AND CIRCUMSTANCES UNDER WHICH THE PENALTY U/S 271B WAS LEVIED ARE THAT THE ASSESSEE HAS GOT ITS ACCOUNTS AUDITED BEFORE THE DUE DATE OF FILING OF RETURN BUT THE AUDIT R EPORT WAS NOT FILED ALONG WITH THE RETURN OF INCOME. IT WAS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WHEN IT WAS FILED IT WAS NOTICED BY THE ASSESSING OFFICER THAT CERTAIN COLUMNS OF THE AUDIT REPORT WERE NOT FILLED UP AND ARE LYING BLANK. THE ASSESSING OFFICER PRESUMED THAT THE REPORT WAS NOT GOT AUDITED BEFORE THE DUE DATE AND HE ACCORDINGLY LEVIED THE PENALTY U/S 271B AT RS.23.746/ - IN I.T.A. NO.262/LKW/2013, RS.30,578/ - IN I.T.A. NO.261/LKW/2013 AND RS.1,00,000/ - IN I.T.A. NO.263/LKW/2013. THE PENALTY WAS CHALLENGED BEFORE THE CIT(A) BUT THE ASSESSEE DID NOT FIND FAVOUR WITH HIM. NOW THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE ASSESSING OFFICER HAS PRESUMED THAT THE ACCOUNTS WERE NOT GOT AUDITED B EFORE THE DUE DATE AND HE LEVIED THE PENALTY WITHOUT BRINING ANY COGENT EVIDENCE IN SUPPORT OF HIS BELIEF THAT THE AUDIT REPORT WAS NOT OBTAINED BEFORE THE DUE DATE WHEREAS THE ASSESSEE HAD GOT ITS ACCOUNTS AUDITED AND OBTAINED THE REPORT BEFORE THE DUE DA TE . T HEREFORE, THE PENALTY U/S 271C CANNOT BE LEVIED. 3 3. THE LEARNED D.R. SIMPLY PLACED THE RELIANCE UPON THE ORDER OF CIT(A). 4. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORITIE S BELOW, WE FIND THAT THE ASSESSING OFFICER HAS SIMPLY FORMED A BELIEF ON THE BASIS OF CERTAIN COLUMNS, WHICH WERE NOT FILLED UP IN THE AUDIT REPORT, THAT THE ACCOUNTS OF THE ASSESSEE WERE NOT GOT AUDITED AND AUDIT REPORT WAS NOT OBTAINED BEFORE THE DUE DA TE. BUT BEFORE LEVYING THE PENALTY, THE ASSESSING OFFICER HAS NOT BROUGHT ANY COGENT EVIDENCE IN SUPPORT OF HIS BELIEF. SINCE THE PENALTY U/S 271B WAS LEVIED ON THE BASIS OF PRESUMPTION, WE FIND NO MERIT IN THE PENALTY LEVIED U/S 271B BY THE ASSESSING OF FICER AND SUSTAINED BY CIT(A). WE ACCORDINGLY SET ASIDE THE ORDER OF CIT(A) AND DELETE THE PENALTY. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1 1 / 0 4 / 2 0 1 4 ) SD/. SD/. ( A. K. GARODIA ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 1 / 0 4 / 2 0 1 4 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR