The Dodiya Group Dudh Utpadak Sahakari Mandli Ltd., Aravali V. The Income Tax Officer, S.K. Ward-2, Himatnagar

ITA 3279/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9584 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 24-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D V SINGH
• Assessee Lawyers: DIVYAKANT PARIKH
• Keywords: Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA K. YADAV, JUDICIAL MEMBER ./ ITA NO. 3279/AHD/2015 / ASSESSMENT YEAR: 2013-14 THE DODIYA GROUP DUDH UTPADAK SAHAKARI MANDLI LTD, AT & POST : DODIYA, JAMALPURA, TAL : MALPUR, DIST: ARVALI - 383315 .. APPELLANT PAN : AAAJT 2319 M VS INCOME TAX OFFICER, S.K. WARD - 2 HIMMATNAGAR .. RESPONDENT ASSESSEE(S) BY : SHRI DIVYAKANT PARIKH, AR REVENUE BY : SHRI D.V. SINGH, DR / DATE OF HEARING 08 / 01 /201 6 /DATE OF PRONOUNCEMENT 03 / 0 2 /201 6 / O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, AHMEDA BAD DATED 11.09.2015 PASSED FOR ASSESSMENT YEAR 2013-14, ON THE FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF APPEALS-II HAS CONFIRM ED THE PENALTY ORDER PASSED BY LEARNED INCOME TAX OFFICER U/S 271-B OF I.T. ACT FOR NON FILING TAX AUDIT REPORT U/S 44AB(A) OF I.T. ACT BEFORE DUE DATE. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AMEND , TO MODIFY, TO SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEALS ON OR BEFORE THE FINAL HEARING, I F NECESSARY SO ARISES. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A CO-OPE RATIVE SOCIETY REGISTERED UNDER THE CO-OPERATIVE SOCIETY ACT, GUJARAT. THE MAIN OBJECT OF THE ASSESSEE IS TO COLLECT MILK FROM THE MEMBERS OF (SMC) ITA NO. 3279/AHD/2015 THE DODIYA GROUP DUDH UTPADAK SAHAKARI MANDLI LTD AY 2013-2014 2 THE SOCIETY AND SUPPLYING THE SAME TO SABAR DAIRY CO- OPERATIVE SOCIETY LTD., HIMMATNAGAR. THE STAND OF THE ASSESSEE H AS BEEN THAT ITS PROFIT IS EXEMPTED UNDER SECTION 80P OF INCOME-TAX A CT AND THERE IS NO REVENUE LINKAGE OF THE INCOME DEPARTMENT. THE AS SESSEE HAS FILED ITS RETURN OF INCOME ON 20.10.2013 WITHOUT OBTAI NING TAX AUDIT REPORT UNDER SECTION 44AB(A) OF THE ACT. THEREFORE, THE ASSESSING OFFICER IMPOSED PENALTY OF RS.82,387/- LEVIED U/S 2 71B FOR THE ACT FOR NON-FURNISHING OF TAX AUDIT REPORT U/S 44AB(A) OF THE ACT. IN APPEAL, THE CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271B OF THE ACT. THEREFORE, THE ASSESSEE I S NOW IN APPEAL BEFORE THE TRIBUNAL. 2.1 I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE INCO ME OF THE ASSESSEE-SOCIETY WAS NIL DURING THE YEAR UNDER CONS IDERATION AND THE SAME WAS ACCEPTED AS SUCH AFTER EXEMPTION U/S 80P OF THE ACT. IT WAS PLEADED BY THE ASSESSEE BEFORE ME THAT THAT THE AS SESSEE WAS OF THE BONAFIDE BELIEF THAT IT WAS NOT REQUIRED TO GET THE AUDIT REPORT UNDER THE INCOME-TAX ACT AS THE PROFIT OF THE ASSESSEE W AS EXEMPTED UNDER SECTION 80P OF THE ACT. IT WAS ALSO SUBMITTED THA T THERE WAS NO LEAKAGE OF REVENUE SINCE RETURNED INCOME AT NIL WA S ACCEPTED AND THERE WAS NO DELIBERATE MALAFIDE INTENTION FOR THE DE FAULT. I FIND THAT HONBLE UTTARANCHAL HIGH COURT IN THE CASE OF CIT VS. IQBALPUR CO- OPERATIVE CANE DEVELOPMENT UNION LTD, REPORTED IN [200 9] 179 TAXMAN 27 (UTTARAKHAND), HELD AS UNDER:- SECTION 271B- READ WITH SECTION 44AB AND 80P, OF THE INCOME- TAX ACT, 1961 PENALTY FOR FAILURE TO GET ACCOUNTS A UDITED ASSESSEE WAS A CO-OPERATIVE SOCIETY ENGAGED IN PROMO TION AND SUPPLY OF SUGARCANE PRODUCED BY ITS MEMBERS TO LOCAL SUGAR MILLS IT FAILED TO GET ITS ACCOUNT AUDITED AS REQUIRE D UNDER SECTION 44AB WITHIN PRESCRIBED TIME AND, THUS, ASSESSI NG OFFICER IMPOSED PENALTY UNDER SECTION 271B ON SEC OND APPEAL, TRIBUNAL HAVING REGARD TO FACT THAT NO TAX WAS P AYABLE (SMC) ITA NO. 3279/AHD/2015 THE DODIYA GROUP DUDH UTPADAK SAHAKARI MANDLI LTD AY 2013-2014 3 BY ASSESSEE-SOCIETY UNDER PROVISIONS OF SECTION 80P, SET ASIDE IMPUGNED PENALTY ORDER WHETHER EVEN THOUGH ASSESSEE WAS LIABLE TO PENALTY UNDER SECTION 271B FOR FAILURE TO CO MPLY WITH PROVISIONS OF SECTION 44AB, YET, IN VIEW OF FACT THAT NO TAX WAS PAYABLE BY IT AS PER PROVISIONS CONTAINED IN SECTION 8 0P, TRIBUNAL HAD COMMITTED NO ERROR OF LAW IN SETTING ASIDE PENALTY IMPOSED BY ASSESSING OFFICER HELD, YES. 2.2 NOTHING CONTRARY WAS BROUGHT TO MY KNOWLEDGE ON B EHALF OF THE REVENUE. FACTS BEING SIMILAR, SO FOLLOWING THE SA ME REASONING AS REFERRED TO ABOVE IN THE CASE OF IQBALPUR CO-OPERATIV E CANE DEVELOPMENT UNION LTD (SUPRA), I AM NOT INCLINED TO CON CUR WITH THE FINDINGS OF THE LD. CIT(A); BECAUSE IN THE PRESENT C ASE ALSO NO TAX WAS PAYABLE BY THE ASSESSEE UNDER THE PROVISIONS OF SECTION 80P THOUGH ASSESSEE, UNDER THE BONAFIDE BELIEF AS STATED A BOVE, FAILED TO GET ITS ACCOUNT AUDITED AS REQUIRED UNDER SECTION 44AB O F ACT. I, THEREFORE, ALLOW THIS APPEAL FILED BY THE ASSESSEE AND DELETE THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271B OF THE ACT. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 3RD FEBRUARY, 2016 AT AHMEDABAD. SD/- ( SHAILENDRA K. YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 03/02/2016 BIJU T., PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) !', / ITAT, AHMEDABAD