M.Shanmugam, Salem V. ITO Ward 2(1), Salem

ITA 3505/CHNY/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5702 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 26-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J PAVITRAN KUMARJCITD R
• Assessee Lawyers: S SRIDHAR ERODE
• Keywords: Set aside
• Section: 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & S HRI RAMIT KOCHAR , ACCOUNTANT MEMBER ./ I.T.A.NO.3505/CHNY/2018 / ASSESSMENT YEAR : 2013-14 SHRI M.SHANMUGAM, D.NO.8-1/72A,KAKKAPALAYAM ROAD, ELAMPILLAI POST, SALEM 637 502. VS. INCOME TAX OFFICER, WARD NO.2(1), SALEM. [PAN AVDPS 3590 F] ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.S.SRIDHAR,ADVOCATE,ERODE /RESPONDENT BY : MR.J.PAVITRAN KUMAR,JCIT,D.R / DATE OF HEARING : 19 - 09 - 201 9 / DATE OF PRONOUNCEMENT : 19 - 09 - 201 9 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS),SALEM IN APP EAL NO.33/2017- 18 DATED 24.10.2018 FOR THE ASSESSMENT YEAR 201 3-14 CONFIRMING LEVY OF PENALTY U/S.271B OF THE ACT. 2. SHRI S.SRIDHAR REPRESENTED ON BEHALF OF THE ASS ESSEE AND SHRI J.PAVITRAN KUMAR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LD.AR THAT THERE WAS A SURVEY IN THE PREMISES OF ASSESSEE ON 22.10.2012 DUE TO WHICH THE RE WAS A DELAY IN ITA NO.3505/CHNY/2018 :- 2 -: FINALIZING OF THE ACCOUNTS OF EARLIER YEARS. AS THE OWN STATEMENT RECORDED IN THE COURSE OF SURVEY WAS NOT AVAILABLE WITH THE ASSESSEE AND THE SAME HAD TO BE OBTAINED FROM ASSESSING OFFI CER, IT WAS SUBMITTED THAT THE RETURN FOR THE ASSESSMENT YEAR 2 012-13 CAME TO BE FILED ON 20.07.2013. FOR THE ASSESSMENT YEAR, 2013- 14, THE RETURN WAS FILED ONLY ON 12.03.2014 AFTER OBTAINING AUDIT REPO RT. IT WAS SUBMITTED THAT UNDER SIMILAR CIRCUMSTANCES IN THE C ASE OF ASSESSEES WIFE, SMT.S.THILAIKKARASI, THE CO-ORDINATE BENCH OF THIS TRIBUNAL VIDE ORDER DATED 30.04.2019 IN ITA NO.3504/CHNY/2018 FOR ASSESSMENT YEAR 2013-14 HAD CANCELLED THE PENALTY LEVIED U/S.2 71B OF THE ACT. 4. IN REPLY, THE LD.DR VEHEMENTLY SUPPORTED THE ORD ERS OF ASSESSING OFFICER AND THE LD.CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO PERUSED THE ORDER OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF A SSESSEES WIFE, SMT.S.THILAIKKARASI REFERRED TO SUPRA. IT IS NOTIC ED THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS HELD AS FOLLOWS:- THE VERY OBJECT OF FILING OF AUDIT REPORT IS TO AS SIST THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT AND LEVY TAX. IN THIS CASE, THE AUDIT REPORT WAS ADMITTEDLY FILED ON 13.03.2014 AND THE ASSESSMENT WAS COMPLETED ON 30.12.2016. THEREFORE, THE AUDIT R EPORT WAS VERY MUCH AVAILABLE BEFORE THE ASSESSING OFFICER ON THE DATE OF ASSESSMENT ORDER. THEREFORE, THERE IS NO IMPEDIMENT ON THE PART OF THE ASSESSEE IN COMPLETING THE ASSESSMENT BY THE AS SESSING 3 I.T.A. NO.3504/CHNY/18 OFFICER. HENCE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LEVY OF PENALTY UNDER SECTION 271B OF THE ACT IS NOT CALLED FOR. IT IS WELL SETTLED PRINCIPLE OF LAW THA T FILING OF AUDIT REPORT ITA NO.3505/CHNY/2018 :- 3 -: IS MANDATORY BUT THE TIME LIMIT IS ONLY DISCRETIONA RY. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS UNABLE TO UPHOLD THE ORDERS OF THE LOWER AUTHORITIES. ACCORDINGLY, ORDERS OF BOTH THE AUTHOR ITIES BELOW ARE SET ASIDE AND THE PENALTY LEVIED UNDER SECTION 271B OF THE ACT IS DELETED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. AS IT IS NOTICED THAT THE ISSUE RAISED IN ASSESSEE S APPEAL IS IDENTICAL TO THE FACTS DECIDED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES WIFE APPEAL REFERRED TO SUPRA, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF CHENNAI TRIBUNAL R EFERRED TO SUPRA, THE PENALTY U/S.271B OF THE ACT AS LEVIED BY THE AS SESSING OFFICER AND CONFIRMED BY THE LD.CIT(A) STANDS DELETED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSIO N OF HEARING ON 19 TH SEPTEMBER, 2019, AT CHENNAI. SD/- SD/- (RAMIT KOCHAR) /ACCOUNTANT MEMBER (GEORGE MATHAN) / JUDICIAL MEMBER ' / CHENNAI # / DATED: 19 TH SEPTEMBER, 2019. K S SUNDARAM '( )( / COPY TO: 1 . / APPELLANT 3. * () / CIT(A) 5. ( / / DR 2. / RESPONDENT 4. * / CIT 6. / GF