Gnanadurai, CHENNAI V. ITO, CHENNAI

ITA 31/CHNY/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7796 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Assessee Lawyers: M NARAYANAN CITRETD
• Keywords: Reasonable cause
• Section: 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBE R AND SHRI. G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NOS.31, 32 & 33/MDS/2016 / ASSESSMENT YEARS : 2009-10, 2010-11 & 2011-12. SHRI. GNANADURAI, PLOT NO.915, 11 TH SECTOR, K.K.NAGAR, CHENNAI 600 078. VS. THE INCOME TAX OFFICER, NON CORPORATE WARD, CHENNAI [PAN ADWPG 3988Q ] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : SHRI. M. NARAYANAN, ADDL. CIT(RETD) $% ! ' # /RESPONDENT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. & ' ' ( / DATE OF HEARING : 01 - 03 - 201 6 ) ' ' ( / DATE OF PRONOUNCEMENT : 17 - 03 - 201 6 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER: THE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AG AINST COMMON ORDERS OF COMMISSIONER OF INCOME TAX (APPEA LS)-14, CHENNAI DATED 19.10.2015 FOR THE ABOVE ASSESSMENT Y EARS PASSED U/S.271B AND 250 OF THE INCOME TAX ACT, 1961 (HEREI N AFTER REFERRED ITA NOS.31, 32 &33/2016. :- 2 -: TO AS THE ACT). SINCE THE ISSUE IN THESE APPEALS ARE COMMON IN NATURE, THESE APPEALS ARE CLUBBED, HEARD TOGETHER, AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE HAS RAISED ONLY SUBSTANTIVE GROUND TH AT COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING THE PENALTY WITHOUT CONSIDERING THE FACTS AND GENUINE HARDSHIP OF THE ASSESSEE AND DISTINGUISHED THE CASE LAWS IN THE APPELLATE P ROCEEDINGS. 3. WE TAKE UP ITA NO.33/MDS/2016 OF ASSESSMENT YEAR 2 011- 2012 FOR ADJUDICATION. THE ASSESSEE IS A SENIOR CIT IZEN AND IN THE BUSINESS OF STITCHING SEAT COVERS FOR THE ASSESSM ENT YEAR 2011-2012, THE ACCOUNTS OF ASSESSEE ARE COVERED BY PROVISION S OF TAX AUDIT U/S.44AB OF THE ACT AND THE ASSESSEE FILED RETURN O F INCOME ALONGWITH TAX AUDIT REPORT ON 31.03.2013 WITH TOTAL INCOME OF A11,82,657/-. THE ASSESSEE IS A PROPRIETOR AND IN THE BUSINESS OF STI TCHING JOB WORKS IN THE TRADE NAME M/S. DURO SEATS AND DERIVE INCOME FR OM BUSINESS AND INTEREST ON FIXED DEPOSITS. THE ASSESSEE AS IN EARL IER YEARS UNDERTAKEN STITCHING OF AUTOMOBILE SEAT COVERS FOR M/S. VARRO C ENGINEERING (P) LTD A GROUP CONCERN OF M/S. BAJAJ INDIA LTD FROM UNIT S AT AURANGABAD AND RUDRAPUR IN UTTARANCHAL. FURTHER SUPPLYING SEAT CO VER TO SEATS INDIA TECHNICS (P) LTD (OEM SUPPLIER FOR M/S. HYUNDAI IND IA LTD) FROM CHENNAI UNIT. THE CASE WAS SELECTED UNDER SCRUTINY NORMS FOR ITA NOS.31, 32 &33/2016. :- 3 -: DISCLOSURE OF SUNDRY CREDITORS OF A1.75 CRORES IN B ALANCE SHEET AS ON 31.03.2011 AGAINST TURNOVER OF A2.19 CRORES. THE A SSESSING OFFICER TO VERIFY THE GENUINESS OF SUNDRY CREDITORS ISSUED NOT ICE U/S.143(2) OF THE ACT. IN COMPLIANCE TO NOTICE, THE LD. AUTHORISED R EPRESENTATIVE OF ASSESSEE APPEARED FROM TIME TO TIME AND FILED COPY OF RETURN OF INCOME, COMPUTATION OF INCOME, TAX AUDIT REPORT, A UDITED STATEMENTS OF ACCOUNTS, COPIES OF BANK ACCOUNTS AND COPY OF FIXED DEPOSITS RECEIPTS. ON PERUSAL OF BALANCE SHEET AND LEDGER A CCOUNTS, THE LD. ASSESSING OFFICER FOUND SUNDRY CREDITORS INCLUDED S ALE TAX LIABILITY PAYABLE TO THE GOVERNMENT A1,38,18,816/-. THE LD. COUNSEL EXPLAINED THE ASSESSEE HAS HEALTH ISSUES AND DUE TO WHICH T HE BUSINESS SUFFERED HEAVILY AND FELL IN FINANCIAL DEBTS. THE SALES TAX DEPARTMENT HAS ISSUED INSTRUCTIONS TO THE SUNDRY DEBTOR M/S. V ARROC ENGINEERING (P) LTD TO WITHHOLD THE PAYMENT OF ASSESSEE AND DI RECTED TO PAY TO SALES TAX DEPARTMENT. THE LD. ASSESSING OFFICER DI SALLOWED SALES TAX PAYMENT U/SEC. 43B, CONTRIBUTION TO ESI & PF AFTER DUE DATE U/SEC. 36(1)(V)(A) AND 25% OF REPAIRS AND MAINTENANCE OF V EHICLE AS PERSONAL EXPENDITURE AND ADDED INTEREST ON BANK ACCOUNTS TO THE RETURNED INCOME AND ASSESSEE INCOME OF A21,70,705/-. 4. THE ASSESSING OFFICER HAS INITIATED PENALTY PROCEED INGS U/S.271B OF THE ACT AS THE BOOKS OF ACCOUNTS ARE NO T AUDIT WITHIN THE ITA NOS.31, 32 &33/2016. :- 4 -: STIPULATED TIME UNDER PROVISIONS OF 44AB OF THE AC T AND DEFAULTED IN NOT FILING OF AUDITED REPORT WITHIN DUE DATE OF SEC .139(1) OF THE ACT. IN COMPLIANCE TO PENALTY NOTICE DATED 21.03.2014 AND T HE CASE WAS POSTED FOR HEARING ON 28.03.2014, BUT DUE TO CHANGE OF AUDITOR, THE ASSESSEE FILED SUBMISSIONS IN THE PENALTY PROCEEDIN GS ON 21.05.2014 EXPLAINING THE FACTS AND CIRCUMSTANCES THAT ASSESS EE IS SUFFERING FROM HEALTH PROBLEMS FROM THE YEAR 2005 ONWARDS AND HAS UNDERGONE CORONARY ANGIOPLASTY IN JUNE, 2008. DUE TO PROLONGE D ILLNESS THE ASSESSEE COULD NOT CONCENTRATE ON BUSINESS AFFAIRS WHICH RESULTED IN FINANCIAL DEFAULTS INCLUDING SALES TAX LIABILITY FO LLOWED BY LABOUR PROBLEMS AT NASIK UNIT AND DELAY IN PAYMENT OF CONT RIBUTION OF ESI/PF PAYMENTS. AS THE CRISIS INCREASED FROM YEAR TO YEA R BEING A PROPRIETOR HE COULD NOT CONCENTRATE AND MANAGE THE BUSINESS. THE ASSESSEE HAS DELAYED IN GETTING THE BOOKS OF ACCOUNTS AUDITED UN DER PROVISIONS OF SEC. 44AB OF THE ACT. THE LD. ASSESSING OFFICER PE RUSED THE DOCUMENTARY EVIDENCE OF HEALTH PROBLEMS AND OBSERV ED THAT INSPITE OF PROLONGED ILLNESS AND HEALTH CONDITIONS, THE ASS ESSEE IS HAVING A GOOD TURNOVER OF A2.19 CRORES FOR THE YEAR ENDING 3 1.03.2011 AND OVERLOOKED THE DECLINE OF TURNOVER GRADUALLY. THE ASSESSEE COULD NOT CONCENTRATE ON BUSINESS DUE TO HEALTH ISSUES AND PR OTRACTED LITIGATION WITH COMMERCIAL TAX DEPARTMENT ON SALES TAX LIABILI TY AND LABOUR ITA NOS.31, 32 &33/2016. :- 5 -: PROBLEMS AT NASIK UNIT CANNOT BE CONSIDERED REASONA BLE CAUSE FOR NON COMPLYING OF PROVISIONS OF TAX AUDIT U/SEC. 44B OF BOOKS OF ACCOUNTS AND OBSERVED AT PARA 7 OF ORDER AS UNDER:- THUS, IN VIEW OF THE ABOVE REASONING, IT IS QUITE CLEAR THAT ALTHOUGH THE ASSESSEE HAD FACED CERTAIN PROBLEMS IN HIS PERSONAL/PROFESSIONAL FRONTS, HE HAD NOT BOTHERED T O COMPLY WITH THE STATUTORY PROVISION DESPITE BEING AWARE OF THE PENAL CONSEQUENCES. AS SUCH, THERE WAS NO JUSTIFIC ATION TO PROVE THAT THERE WERE REASONABLE CAUSES & CIRCUMSTA NCES WERE BEYOND THE CONTROL OF THE ASSESSEE TO COMPLY WITH THE SAID REQUIREMENT. HENCE, I CONSIDER THAT THERE IS WILLFUL DEFAULT IN COMPLYING WITH THE PROVISION OF SECTION 44AB. IT IS A FIT CASE FOR LEVY OF PENALTY. ACCORDINGLY, PE NALTY U/S.271B IS LEVIABLE. AND ASSESSING OFFICER LEVIED PENALTY OF A1,09,790/- U/SEC 271B OF THE ACT. AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILE D AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 5. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE REITERATED SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND CONTROVERT THE ORDER OF LD. ASSESSING OFFICER LEVYING PENALTY AS BAD IN LAW ALSO EXPLAINED THE CRITICAL C IRCUMSTANCES OF THE ASSESSEE ON HEALTH ISSUES DUE TO WHICH THE ASSESSEE COULD NOT FILE RETURN OF INCOME AND GET ACCOUNTS AUDITED U/SEC. 4 4AB WITHIN DUE DATE AND REFERRED AT PAGE NO.2 OF CIT ORDER:- ITA NOS.31, 32 &33/2016. :- 6 -: 1. SICKNESS OF THE ASSESSE - MR. GNANADURAI IS A CHRONIC DIABETIC AS WELL AS HIGH BP PERSON. DURING 2004 HE GOT ADMITTED, IN M.V. DIABETIC HOSPITAL FOR A WEEK FOR DIABETIC TREATMENT. HE HAD FIRST HEART ATT ACK IN 2005 IN NASIK AND GOT TREATED AT SUMAN HOSPITAL, NASIK AS WELL AS IN APOLLO HOSPITAL, CHENNAI. LATER HE GOT HEART ATTACK FOR SECOND TIME IN JUNE 2008 AT MUMBAI AIRPORT AND THEN ADMITTED IN CRITI CARE HOSPITAL, ANDHERI, MUMBA.I AGAIN IN AUGUST 2008 HE GOT ADMITTED IN VIJAYA HEART FOUNDATION FOR DIABETI C CUM HEART PROBLEM. FURTHER IN AUGUST ,2011 HE GOT ADMITTED IN VIJAYA MEDICAL FOR HEART. TREATMENT. DU E TO THESE CHRONIC HEALTH PROBLEMS, HE IS CONSTANTLY ON MEDICATION' AND IS UNABLE TO TAKE ANY STRESSFUL WOR KS. IN THIS REGARD WE HAVE SUBMITTED THE VARIOUS HOSPIT AL RECORDS IN THESE FOR YOUR PERUSAL. CASE LAW : K. RAVIKUMAR AND CO. VS ITO (APPELLATE TRIBUNAL, MADRAS) ON 7 FEBRUARY, 1989 - ONE OF THE PARTNERS SRI K. SRINIVASAN WAS SERIOUSLY ILL DURING 1985 AND HE WAS ACTUALLV ADMITTED IN HOSPITAL. FOR A SURGERY ON 21-9-1985. THE ILLNESS OF THE MANAGING PARTNER HAD CLEARLY AFFECTED THE DAY-TO-DAY BUSINES S OF THE FIRM AND, THEREFORE, THE NORMAL FUNCTIONING OF THE BUSINESS WAS CLEARLY AFFECTED. HAVING DUE REGARD TO ALL THE ATTENDANT CIRCUMSTANCES, THE PERIOD OF DELAY, T HE CONDUCT. OF THE ASSESSEE IN KEEPING THE DEPARTMENT INFORMED OF THE REASONS FOR DELAY ETC., IT WAS HELD BY THE APPELLATE TRIBUNAL THAT 'IN VIEW OF THE REASONA BLE CAUSE HAVING BEEN ESTABLISHED FOR THE DELAY IN THE AUDIT OF ACCOUNTS, NO PENALTY IS ELIGIBLE ON THE FACTS OF THE PRESENT CASE'. ITA NOS.31, 32 &33/2016. :- 7 -: THE LD. AUTHORISED REPRESENTATIVE EMPHASIZED ON TH E WORKING SYSTEM OF THE BUSINESS UNITS SITUATED IN AURANGABAD, CHEN NAI AND UTTARANCHAL. THE ASSESSEE BEING AN INDIVIDUAL HAS TO MAKE CONSTANT TRAVEL AND SHUTTLE TO THESE PLACES AND ALSO THE AUD ITOR WHO CONDUCT AUDIT OF BOOKS OF ACCOUNTS AND REPRESENTED IN ASSES SMENT AND PENALTY PROCEEDINGS WAS PASSING THROUGH MENTAL TENS ION AND MATRIMONIAL FAMILY PROBLEMS WAS GRANTED DIVORCED BY THE COURT. THE BOOKS COULD NOT BE AUDITED DUE TO NON AVAILABILITY OF CHARTERED ACCOUNTANT INVOLVED IN FAMILY COURT LITIGATION. T HE LD. AUTHORISED REPRESENTATIVE FURTHER RELIED ON THE DECISION OF PA TNA TRIBUNAL IN THE CASE OF ITO VS. GAYATRI COAL SUPPLY CO. DATED 12 TH JUNE, 1997 WHERE THE TRIBUNAL HAS HELD THAT THE PENALTY U/S. 271B I S NOT AUTOMATIC BUT WOULD DEPEND UPON THE ASSESSEES FAILURE TO FURNIS H ANY REASONABLE CAUSE FOR NOT OBTAINING THE AUDIT REPORT WITHIN THE SPECIFIED DATE UNDER SEC. 44AB. ON THIS PROPOSITION, THE TRIBUNAL FOUND THAT AUDIT OF ACCOUNTS OF EARLIER YEARS HAVE TO BE COMPLETED BEF ORE THE ACCOUNTS FOR THE SUBSEQUENT YEAR COULD BE TAKEN UP AND FOUND THE DELAY IN COMPLETING THE ACCOUNTS FOR THE PARTICULAR YEAR WAS A REASONABLE CAUSE AND CANCELLED THE PENALTY. THE ASSESSEE EXP LAINED THE BONAFIDE CREDENTIAL IN FILING THE RETURN FOR EAR LIER ASSESSMENT YEAR ITA NOS.31, 32 &33/2016. :- 8 -: 2000-2001 TO 2008-09 WITHIN DUE DATE U/S.139(1) OF THE ACT OBSERVED AT CIT(A) ORDER AT PAGE NO. 4 AS UNDER:- SUMMARY - MR. GNQNADURAI, HAS BEEN DOING BUSINESS AND HAS TAX AUDIT REPORTS FILING FROM THE ASSESSMEN T YEAR 2001-02 ONWARDS. HE HAS BEEN FILING RETURNS FOR ALL THE YEAR UP TO 2008-09 WITHOUT ANY DELAY AS SHOWN BELOW IN THE CHART ASST. YEAR DUE DATE OF RETURN DATE OF FILING DELAY OF RETURN 1 2000-01 31 ST OCT 01 31 ST OCT 01 NO DELAY 2 2001-02 31 ST OCT 01 31 ST OCT 01 NO DELAY 3 2002-03 31 ST OCT 02 31 ST OCT 02 NO DELAY 4 2003-04 1 ST DEC. 03 1 ST DEC. 03 NO DELAY 5 2004-05 IST NOV. 04 IST NOV. 04 NO DELAY 6 2005-06 31 ST OCT 05 31 ST OCT 05 NO DELAY 7 2006-07 31 ST OCT 06 31 ST OCT 06 NO DELAY 8 2007-08 15 TH NOV 07 31 ST OCT 07 NO DELAY 9 2008-09 30 TH SEP 08 29 TH SEP. 08 NO DELAY UNFORTUNATELY, AFTER THE SECOND HEART ATTACK MR. GN ANADURAI HAD IN 2008, HIS HEALTH CONDITIONED WORSENED. THIS IMP ACTED IN HIS BUSINESS AND HE INCURRED HUGE BUSINESS LOSS AS WELL AS HAD SERIOUS PROBLEMS IN SETTLING HIS BUSINESS DUES. (CO PIES OF THE HOSPITAL RECORDS ENCLOSED) IN ADDITION, PERSONAL FA MILY ISSUES OF THE CHARTERED ACCOUNTANT, WHO HAS DONE THE AUDIT OF MR. GNANADURAI, SINCE 2001-02, HAS ALSO GOT AFFECTED DU RING THIS PERIOD (2009 - 20I3) WHICH ALSO CAUSED IN FILING THE RETURNS LATE AFTER THE DUE DATE. (COPIES OF THE COURT ORDERS ENC LOSED). HENCE WE REQUEST YOUR GOOD SELF TO KINDLY WAIVE THE PENAL TY IMPOSED BY THE ASSESSING OFFICER AND GIVE RELIEF FOR THE AS SESSE MR. GNANADURAI. THANKING YOU, YOURS FAITHFULLY, V.V.T. NIRAIYAGHAM PROPRIETOR ITA NOS.31, 32 &33/2016. :- 9 -: ENCL: 1. COPIES OF HOSPITAL RECORDS. 2. COPIES OF COURT ORDERS W.R.T. FAMILY ISSUE OF A UDITOR. 3. COPIES OF RETURNS FILED (A.Y. 2001-02 TO 2008-0 9) THE COMMISSIONER OF INCOME TAX (APPEALS) GAVE A ELA BORATE FINDINGS AND CONCURRED WITH THE FINDINGS OF THE ASSESSING O FFICER AND ACCEPTS THAT ONLY FROM ASSESSMENT YEAR 2009-2010, THE TAX A UDIT REPORT WAS NOT FINALIZED WITHIN STIPULATED TIME WERE ASSESSEE WAS UNDERGOING PROLONGED ILLNESS AND FACING LITIGATIONS WITH GOVER NMENT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALSO DISTINGUI SHED THE HYDERABAD TRIBUNAL SPECIAL BENCH DECISION ACIT VS. GAYATRI TRADERS (1996) 222 ITR 1 WITH FACTS OF THE ASSESSEE, AS ASSESSEE COULD NOT EXPLAIN REASONABLE CAUSE U/S.273B OF THE ACT AND CO NFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE ASSAILED AN APPEAL BEFORE THE TRIBUNAL. 6. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE IN THE ASSESSMENT P ROCEEDINGS, PENALTY PROCEEDINGS AND APPELLATE PROCEEDINGS AND A RGUED VEHEMENTLY JUSTIFYING GROUNDS AND CIRCUMSTANCES OF EVENTS WHIC H ASSESSEE PASSED THROUGH DURING FINANCIAL YEARS AND EMPHASIZED THAT THE ASSESSEE IS A SENIOR CITIZEN OF INDIA AND IN THE BUSINESS FOR M ORE THAN A DECADE ITA NOS.31, 32 &33/2016. :- 10 -: AND FILING RETURN OF INCOME REGULARLY UPTO ASSESSME NT YEAR 2008-09 AND PAID TAXES TO GOVERNMENT. THE ASSESSSEES BONA FIDES FOR COMPLIANCES OF PROVISIONS OF LAW BE PROVED FOR THE ASSESSMENT YEARS 2000-2001 TO 2008-09 AND THE RETURN OF INCOME WAS F ILED ALONGWITH TAX AUDIT REPORT U/SEC. 44AB OF THE ACT BEFORE DUE DATE U/S.139(1) OF THE ACT. BUT ONLY DURING THE FINANCIAL YEAR 2008-0 9, 2009-10 AND 2010-11, THE ASSESSEE PASSED THROUGH TREMENDOUS PRE SSURE AND SUFFERED HEART ATTACK IN 2008 AS HEALTH CONDITION DETERIORATED FOLLOWED BY VEXATIOUS LITIGATION WITH THE GOVERNMEN T ON PAYMENT OF SALES TAX AND STATUTORY PAYMENT OF EPF & ESI INDIRE CTLY CAUSED LOSS TO THE BUSINESS. THE AUDITOR OF THE ASSESSEE FOR COND UCTING TAX AUDIT AND CONSULTANT OF INCOME TAX AND MANAGEMENT ISSUE S WAS PASSING THROUGH FAMILY PROBLEMS WHICH INFLUENCED CHARTERED ACCOUNTANT TO APPROACH THE COURT FOR OBTAINING DIVORCE. ALL THES E FACTORS OF HEALTH ISSUES AND INABILITY OF THE AUDITOR DUE TO SERIOU S FAMILY ISSUES AND ALSO ASSESSEE BEING PROPRIETOR AND SENIOR CITIZEN H AS TO SHUTTLE BETWEEN CHENNAI, ARUGANGABAD AND UTTARANCHAL AND SO LVE LABOUR PROBLEMS BE CONSIDERED AS REASONABLE CAUSE. THE LD. COUNSEL ALSO FILED PAPER BOOK WITH SHOW CAUSE NOTICE OF GOVERNMENT AN D MEDICAL PAPERS AND FAMILY COURT PAPERS. THE LD. COUNSEL F URTHER DREW ATTENTION TO HOSPITALIZATION AND TREATMENT PAPERS O F ASSESSEE AT PAGE ITA NOS.31, 32 &33/2016. :- 11 -: 15 TO 43 WERE THE ASSESSEE HAS PASSED THROUGH MEDIC AL ALIGNMENT DURING SAID PERIOD AND SUPPORTED HIS ARGUMENTS WITH THE ORDER OF FAMILY COURT IN CASE OF DIVORCE OF THE CHARTERED A CCOUNTANT DT 31.05.2013, WHICH CRIPPLED THE ASSESSEE TO GET HIS ACCOUNTS AUDITED AND RELIED ON TRIBUNAL DECISION OF GAYATRI TRADERS (SUPRA) AND PRAYED FOR DELETION OF PENALTY. 7. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND OPPOSED TO THE GROUNDS OF THE ASSESSEE. 8. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIA L ON RECORD AND JUDICIAL DECISIONS CITED. THE LD. AUTHOR ISED REPRESENTATIVE EMPHASIZED THAT THE ASSESSEE IS A PROPRIETOR AND S ENIOR CITIZEN HAS SHOWN THE BONAFIDES OF FILING RETURN OF INCOME FOR EARLIER ASSESSMENT YEARS 2000-2001 TO 2008-09 REFERRED IN COMMISSIONE R OF INCOME TAX (APPEALS) ORDER WITHIN DUE DATE AND TAX AUDIT REPOR T U/S.44AB WAS ALSO FILED. THE MAIN PROBLEM ARISED IN FINANCIAL YEAR 2008-09 WERE THE ASSESSEE SUBSTANTIATES HIS GENUINE HARDSHIP AND ALSO SUFFERED HEART ATTACK IN 2008 WITH SEVERE HEALTH PROBLEMS HAD A CASCADING EFFECT ON THE MANAGEMENT OF AFFAIRS OF BUSINESS WHICH RESULT ED IN THE LOSSES ITA NOS.31, 32 &33/2016. :- 12 -: AND LABIALITY OF SALES TAX AND STATUTORY PAYMENTS FOLLOWED BY LABOUR PROBLEM IN UNIT. THE COMMISSIONER OF INCOME TAX (AP PEALS) THOUGH ACCEPTED THE FINDINGS OF THE ASSESSEE ON HEALTH PRO BLEMS AND OTHER ISSUES AND ASSESSEES COULD HAVE GOT THE ACCOUNTS AUDIT U/S.44AB AS BUSINESS IS BEING MANAGED. WE FIND THE OBSERVATION S OF THE COMMISSIONER OF INCOME TAX (APPEALS) ARE ROUTINE AN D OVERLOOKED THE GENUINE HARDSHIP OF THE ASSESSEE ON THE BASIS OF EV IDENCE FILED IN APPELLATE PROCEEDINGS. NO DOUBT IT IS A STATUTORY DUTY CAST ON THE ASSESSEE TO GET HIS ACCOUNTS AUDITED U/SEC. 44AB BU T CIRCUMSTANCES HAS GONE BEYOND THE CONTROL. THE ASSESSEE HAS COMP LIED WITH AUDIT U/SEC. 44AB AND FILED TAX AUDIT REPORT BELATEDLY AL ONGWITH RETURN OF INCOME U/SEC. 139(4) OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) AND THE ASSESSING OFFICER ARE SUSPICIOUS AND ACTION OF COMPARING BUSINESS TURNOVER WITH THE ASSESSEES HE ALTH CONDITION IS ILLOGICAL AND NOT ACCEPTED. SO, CONSIDERING THE AP PARENT FACTS SATISFYING THE REASONABLE CAUSE AND JUDICIAL DECIS IONS RELIED BY THE ASSESSEE, WE SET ASIDE THE ORDER OF THE COMMISSION ER OF INCOME TAX (APPEALS) AND DIRECT THE ASSESSING OFFICER TO DELET E THE PENALTY. THE APPEAL OF THE ASSESSEE IS ALLOWED. ITA NOS.31, 32 &33/2016. :- 13 -: 9. CONSEQUENTLY, THE APPEALS OF THE ASSESSEE IN ITA NOS.31/MDS/2016 OF ASSESSMENT YEAR 2009-2010 & IT A NO.32/MDS/2016 OF ASSESSMENT YEAR 2010-11 ARE ALSO ALLOWED. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALL OWED. ORDER PRONOUNCED ON THURSDAY, THE 17TH DAY OF MA RCH, 2016 AT CHENNAI. SD/- SD/- ( . ) (A. MOHAN ALANKAMONY) # $% / ACCOUNTANT MEMBER ( & . ' ( ) (G. PAVAN KUMAR) ) $% / JUDICIAL MEMBER *& / CHENNAI + / DATED:17TH MARCH, 2016. KV , ' $'./ 0/' / COPY TO: 1 . ! / APPELLANT 2. $% ! / RESPONDENT 3. 1' () / CIT(A) 4. 1' / CIT 5. /4 5 $'6 / DR 6. 5 7 8 & / GF