M/S KRISHI UPAJ MANDI SAMITI, Kasrawad V. THE ITO, Kasrawad

ITA 415/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0042 (ITAT-INDORE)
• Duration Of Justice: 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 18-08-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 07-08-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: NITIN AGARWAL
• Keywords: Additional evidence; Reasonable cause

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE (S.M.C.I) BENCH, INDORE. BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER PAN NO. : AAALK-0731E I.T.A.NO. 415/IND/2009 A.Y.: 2005-06 KRISHI UPAJ MANDI SAMITI, INCOME - TAX OFFICER, MAHESHWAR ROAD, VS . KHARGOAN KASRAWAD A PPELLANT RESPONDENT APPELLANT BY : SHRI NITIN AGARWAL, C.A. RESPONDENT BY : SMT.APARNA KARAN, D.R. O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A)II, INDORE, DATED 15 TH MAY, 2009, FOR ASSESSMENT YEAR 2005-06 CHALLENGING THE LEVY OF PENALTY U/S 271-B OF THE IN COME-TAX ACT, 1961, ON THE FOLLOWING GROUNDS :- 2 (1) THE LD. CIT(A) HAS GROSSLY ERRED BOTH IN FACT & LA W IN NOT ADMITTING THE ADDITIONAL EVIDENCE UNDER RUL E 46A OF THE INCOME TAX RULES, 1962. (2) THAT LD. CIT (A) HAS ERRED IN HOLDING THAT THERE WAS NO REASONABLE CAUSE FOR NOT GETTING HIS ACCOUNTS AUDITED U/S 44AB OF THE INCOME-TAX ACT. 2. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE WAS R EQUIRED TO GET ITS ACCOUNT AUDITED AS PER PROVISIONS OF SECTION 44 AB. SINCE NO, AUDITED ACCOUNTS ALONGWITH AUDIT REPORT IN FORM NO. 3CA AND 3CD HAVE BEEN FILED BY THE ASSESSEE, IT WAS LIABLE FOR PENALTY U/S 271- B OF THE ACT WITHIN THE MEANING OF SECTION 44AB OF THE ACT. VIDE PENALTY OR DER, THE ASSESSING OFFICER IMPOSED THE PENALTY OF RS. 34,810/- AGAINST THE ASSESSEE. IT WAS PLEADED BEFORE THE LD. CIT(A) THAT IN ASSESSMENT YE AR 2003-04, THE TRIBUNAL CANCELLED THE PENALTY CONSIDERING IT TO BE FIRST YEAR FOR THE DEFAULT, BECAUSE THE INCOME OF THE ASSESSEE WAS TAX ABLE FOR THE FIRST TIME, AFTER THE AMENDED PROVISIONS OF SECTION 10(20 ) OF THE INCOME-TAX ACT. THE LD. CIT(A), HOWEVER, DID NOT ACCEPT THE CO NTENTION OF THE ASSESSEE, BECAUSE EVEN IN SUBSEQUENT YEAR, THE PLEA OF IGNORANCE CANNOT BE ACCEPTED. THE PENALTY WAS, ACCORDINGLY, CONFIRME D. 3. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND VERY FAIRLY C ONCEDED THAT IN THE ASSESSMENT YEAR IN QUESTION, THE ASSESSEE DID NOT G ET THE ACCOUNTS AUDITED FROM THE CHARTERED ACCOUNTANTS AND FROM THE SUBSEQUENT ASSESSMENT YEAR 2006-07, THE ASSESSEE STARTED GETTI NG THE ACCOUNTS 3 AUDITED. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THERE WAS IGNORANCE ON THE PART OF THE ASSESSEE TO GET THE A CCOUNTS AUDITED. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT IN SECOND ASS ESSMENT YEAR 2004- 05, PENALTY ON THE SAME FACTS IS CONFIRMED BY I.T.A .T., INDORE, S.M.C. BENCH II, IN THE CASE OF THE SAME ASSESSEE IN I.T.A .NO.283/IND/2009 FOR ASSESSMENT YEAR 2004-05 VIDE ORDER DATED 22 ND JUNE, 2009. COPY OF THE ORDER IS PLACED ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE ON GOING THROUGH THE AFORESAID ORDER OF THE TRIBUNAL CONCEDE D THAT THE ISSUE IS NOW COVERED AGAINST THE ASSESSEE. 4. ON CONSIDERATION OF THE ABOVE FACTS, I AM OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE MATTER. THE TRIBU NAL EARLIER IN THE ASSESSMENT YEAR 2003-04 CANCELLED THE PENALTY, BECA USE SECTION 10(20) WAS AMENDED FOR THE FIRST TIME WHEN THE INCOME OF T HE ASSESSEE WAS TAXABLE IN ASSESSMENT YEAR 2003-04. IT BEING THE FI RST YEAR, THE REASONABLE CAUSE FOR NOT GETTING THE ACCOUNTS AUDITED WAS ACCE PTED. HOWEVER, IN THE SUBSEQUENT ASSESSMENT YEAR 2004-05, THE TRIBUNAL CO NFIRMED THE PENALTY VIDE ORDER DATED 22 ND JUNE, 2009, IN I.T.A.NO. 283/IND/2009 BY HOLDING THAT IN THE ABSENCE OF AUDIT REPORT AND AGAIN FOR THE SECOND YEAR, FROM THE DATE OF AMENDMENT IN THE INCOME TAX ACT, I DO N OT CONSIDER THAT IT IS REASONABLE CAUSE THAT THE ASSESSEE WAS NOT AWARE AB OUT THE AMENDMENT IN THE INCOME-TAX ACT, 1961, THEREFORE, FAILED TO G ET ITS ACCOUNT AUDITED U/S 44AB OF THE INCOME TAX ACT, 1961. IN SUCH CIRCU MSTANCES, THE ORDER OF THE CIT(A) IS UPHELD. IT IS ADMITTED FACT THAT THE ASSESSMENT YEAR UNDER APPEAL IS THIRD YEAR I.E. 2005-06 IN WHICH THE ASSE SSEE AGAIN DID NOT GET THE ACCOUNTS AUDITED EVEN WITH DELAY. THEREFORE, IT IS A CASE OF TOTAL 4 NEGLIGENCE INACTION ON THE PART OF THE ASSESSEE TO GET THE ACCOUNTS AUDITED. THE ISSUE IS, THEREFORE, COVERED AGAINST T HE ASSESSEE BY ABOVE ORDER OF THE TRIBUNAL. THERE IS NO REASONABLE CAUSE EXIST IN FAVOUR OF THE ASSESSEE. APPEAL OF THE ASSESSEE HAS NO MERIT. THE SAME IS, ACCORDINGLY, DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. THE ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2009. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 18 TH AUGUST, 2009. CPU* 188 5