Sh. Azad Kumar Jain, Guna V. CIT, Gwalior

ITA 43/AGR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6973 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 25-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHOK VIJAYWARGIYA
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.43/AGR/2010 ASST. YEAR: 2005-06 SHRI AZAD KUMAR JAIN, VS. INCOME TAX OFFICER, PROP. M/S. AJAY TRADERS, GUNA (M.P.) GALLA MANDI, ARON, DISTT. GUNA M.P.) (PAN : AEVPJ 5044 A). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHOK VIJAY WARGIYA, C.A. RESPONDENT BY : SHRI VINOD KUMAR, JR. D.R. ORDER PER H.S. SIDHU, J.M. : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER DATED 18.01.2010 PASSED BY THE LD. CIT(A), GWALIOR ON THE FOLLOWING GROUNDS :- 1. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE AUTHORITIES BELOW HAVE ERRED IN LEVYING AND CONFIRM ING THE PENALTY OF ` 59,654/- U/S. 271B OF THE INCOME TAX ACT, 1961. 2. THAT, THE APPELLANT CRAVES LEAVE TO ADD/AMEND AN Y GROUND(S) OF APPEAL BEFORE AND/OR AT THE TIME OF HEARING. 2. THE ASSESSING OFFICER INITIATED THE PENALTY PROC EEDINGS UNDER SECTION 271B OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BECAUSE HE NOTICED THAT THE 2 ASSESSEE FAILED TO GET HIS ACCOUNTS AUDITED IN RESP ECT OF PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2005-06 WITHIN THE SPECIFIED TIME I .E. ON OR BEFORE 31 ST OCTOBER, 2005 AND ALSO FAILED TO FURNISH A REPORT OF SUCH AU DIT AS REQUIRED UNDER SECTION 44AB OF THE ACT. HE ISSUED SHOW CAUSE NOTICE DATED 08.03.2006 TO THE ASSESSEE WHICH WAS DULY SERVED. IN RESPONSE TO THE SAME, TH E ASSESSEE SUBMITTED HIS WRITTEN SUBMISSION ON 05.04.2006 STATING THAT HE WAS SICK F ROM 31 ST OCTOBER 2005 TO 5 TH NOVEMBER, 2005 AND GOT ADMITTED INTO THE GOVT. HOSP ITAL, ARON, DISTT. GUNA FOR TREATMENT. THE ASSESSEE FURTHER SUBMITTED THAT AS SOON AS HE RECOVERED, HE GOT THE AUDIT COMPLETED ON 8 TH NOVEMBER, 2005 AND FILED HIS INCOME TAX RETURN ALO NG WITH AUDIT REPORT ON 16 TH NOVEMBER, 2005. HE REQUESTED THAT DUE TO THIS REA SONABLE CAUSE, DELAY MAY BE CONDONED IN FILING THE AUDIT RE PORT UNDER SECTION 44AB OF THE ACT IN TIME. HE HAS ALSO ENCLOSED REGISTRATION REC EIPT AND MEDICAL CERTIFICATE OF BLOCK MEDICAL OFFICER, CHC, ARON, DIST GUNA IN SUPP ORT OF HIS VERSION AND REQUESTED TO THE ASSESSING OFFICER TO DROP THE PROC EEDINGS INITIATED UNDER SECTION 271B OF THE ACT. THE ASSESSING OFFICER CONSIDERED THE EXPLANATION OF THE ASSESSEE AND REJECTED THE SAME AND LEVIED PENALTY OF ` 59,654/- UNDER SECTION 271B OF THE ACT VIDE ORDER DATED 20.07.2006. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE THE IMPUGNED ORDER DATED 18.01.2010, DISMISSED THE APPEAL OF THE ASSESSEE BY UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER. NOW THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 18.01.2010. 3 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE WAS SICK FROM 31 ST OCTOBER, 2005 TO 5 TH NOVEMBER, 2005 AND AFTER RECOVERING FROM THE DISEASE HE GOT THE AUDIT COMPLE TED ON 8 TH NOVEMBER, 2005 AND FURNISHED AUDIT REPORT ALONG WITH RETURN ON 16 TH NOVEMBER 2005. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE HAS FILED DOCUMENTARY EVIDENCES SUPPORTING THE VERSION BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE LD. FIRST APPELLATE AUTHORITY, BUT THE REVENUE AUTHORITIES HA S NOT CONSIDERED THE SAME SYMPATHETICALLY AND REJECTED THE VERSION BY LEVYING PENALTY IN DISPUTE. HE REQUESTED THAT THE ASSESSEE COULD NOT FURNISH THE A UDIT REPORT WITHIN THE SPECIFIED TIME DUE TO HIS BAD HEALTH. IT IS A CLEAR REASONAB LE CAUSE ON THE PART OF THE ASSESSEE FOR THE FAILURE TO GET THE AUDIT COMPLETED AND FURN ISH THE SAME WITHIN THE SPECIFIED TIME AS REQUIRED UNDER SECTION 44AB OF THE ACT. HE REQUESTED THAT THE EXPLANATION OF THE ASSESSEE MAY BE ACCEPTED AND THE PENALTY IN DISPUTE MAY BE CANCELLED. 4. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US AND WE ARE OF THE CONSIDERED OPINION THAT T HE ASSESSING OFFICER AND THE LD. FIRST APPELLATE AUTHORITY HAVE NOT DISPROVED THE VE RSION OF THE ASSESSEE WHICH HE HAS TAKEN BEFORE THE AUTHORITIES BELOW. THE ASSESS EE HAS FILED HIS MEDICAL 4 CERTIFICATE FROM THE BLOCK MEDICAL OFFICER, CHC, AR ON, DIST GUNA ALONG WITH REGISTRATION RECEIPT WHICH ESTABLISHES THAT THE ASS ESSEE WAS SICK FROM 31 ST OCTOBER, 2005 TO 5 TH NOVEMBER, 2006. THESE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE HAVE NOT BEEN NEGATED BY THE REVENUE AUTHORITIES BY PRODUCING ANY CONTRARY EVIDENCE. KEEPING IN VIEW OF THE FACTS AND CIRCUMS TANCES OF THE PRESENT CASE AND PENALTY OF ` 59,654/- LEVIED UNDER SECTION 271B OF THE ACT, WE A RE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS ESTABLISHE D REASONABLE CAUSE FOR NOT FILING THE AUDIT REPORT WITHIN THE TIME DUE TO HIS BAD HEA LTH WHICH HE HAS PROVED WITH THE SUPPORT OF DOCUMENTARY EVIDENCES. THEREFORE, THE P ENALTY IN DISPUTE DESERVES TO BE CANCELLED AND WE CANCEL THE IMPUGNED PENALTY OF ` 59,654/- LEVIED UNDER SECTION 271B OF THE ACT AND ACCEPT THE APPEAL FILED BY THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.2011 ). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 30 TH JUNE, 2011 PBN/* 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY