M/s Dhanju Auto Fuel Center, Lakhimpur-Kheri V. Income Tax Officer, Lakhimpur-Kheri

ITA 464/LKW/2013

• Counselvise Citation: 46423714 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C DODEJA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.464/LKW/2013 ASSESSMENT YEAR:2008-09 M/S DHANJU AUTO FUEL CENTER SANSARPUR, GOLA GOKRAN NATH DISTT. LAKHIMPUR KHERI V. INCOME TAX OFFICER WARD II LAKHIMPUR KHERI TAN/PAN:AFHPS0717E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. P.C. DODEJA, C.A. RESPONDENT BY: SMT. ALKA SINGH, D.R. DATE OF HEARING: 16 11 2015 DATE OF PRONOUNCEMENT: 20 11 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) CONFIRMING THE PENALTY OF RS.1 LAKH LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271B OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'). 2. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT THE ASSESSING OFFICER HAS LEVIED A PENALTY UNDER SECTION 271B OF THE ACT FOR NOT GETTING THE ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE, HAVING NOTED FROM THE RETURN THAT THE RELEVANT ENTRY RELATING TO THE PREPARATION OF AUDIT REPORT WAS NOT PROPERLY FILLED UP. 3. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT HE HAS MAINTAINED PROPER BOOKS OF ACCOUNT IN RESPECT OF TRADING BUSINESS OF PETROL PUMP AND FILED RETURN OF INCOME ON ITR-4 WITH PROPER INFORMATION OF AUDIT UNDER SECTION 44AB OF THE ACT. IT WAS FURTHER CONTENDED THAT THE AUDIT REPORT UNDER SECTION 44AB OF THE :- 2 -: ACT IS NOT REQUIRED TO BE ATTACHED ALONG WITH THE RETURN OF INCOME. THE AUDIT REPORT WAS FURNISHED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF HEARING OF PENALTY PROCEEDINGS UNDER SECTION 271B OF THE ACT. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE HAS ALSO PLACED RELIANCE UPON THE BOARD CIRCULAR NO.5/2001 DATED 26.7.2007. BEING NOT CONVINCED WITH THE CONTENTIONS OF THE ASSESSEE, THE ASSESSING OFFICER LEVIED THE PENALTY OF RS.1 LAKH. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), BUT THE LD. CIT(A) WAS ALSO NOT CONVINCED WITH THE EXPLANATIONS OF THE ASSESSEE AND HE ACCORDINGLY CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AND THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED COPY OF THE AUDIT REPORT WITH THE SUBMISSION THAT THIS AUDIT REPORT WAS PREPARED BEFORE THE SPECIFIED DATE. SINCE THERE WAS NO REQUIREMENT OF LAW TO ANNEX THE AUDIT REPORT ALONG WITH INCOME-TAX RETURN, IT WAS NOT ANNEXED. IT WAS FURTHER CONTENDED THAT THIS IS THE FIRST YEAR IN WHICH SUBMISSION OF RETURN WAS MADE ONLINE AND THE ASSESSEES AUTHORIZED REPRESENTATIVE FAILED TO FILL UP THE RELEVANT COLUMN RELATING TO THE PREPARATION OF AUDIT REPORT AND THIS MISTAKE WAS INADVERTENT. THE REQUIREMENT OF LAW IS TO GET THE ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE AND THE ASSESSEE HAS GOT ITS ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE, AS THE AUDIT REPORT BEARS THE DATE AS 25.9.2008. THEREFORE, NO PENALTY UNDER SECTION 271B OF THE ACT IS LEVIABLE, AS THE BOOKS OF ACCOUNT WERE AUDITED WITHIN THE PRESCRIBED PERIOD. 5. THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSEE HAS FILED COPY OF THE AUDIT REPORT WHEREFROM IT IS EVIDENT THAT THE AUDIT REPORT :- 3 -: WAS PREPARED BEFORE THE SPECIFIED DATE MEANING THEREBY THE ACCOUNTS WERE GOT AUDITED BEFORE THE SPECIFIED DATE AND AS SUCH THERE IS NO VIOLATION OF THE PROVISIONS OF SECTION 44AB OF THE ACT. THE CONTENTION OF THE ASSESSEE THAT FROM THIS VERY YEAR THE FILING OF RETURN ONLINE WAS STARTED, CANNOT BE IGNORED AND THERE MAY BE POSSIBILITY OF LAPSES AT THE TIME OF FILING OF THE FORMS WHILE SUBMITTING THE RETURN, FOR WHICH SOME LENIENT VIEW SHOULD BE TAKEN. MOREOVER, THE ASSESSEE HAS GOT THE ACCOUNTS AUDITED IN TIME AND THERE IS NO EVIDENCE ON RECORD WHEREFROM IT CAN BE ESTABLISHED THAT THE ASSESSEE DID NOT GET THE ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE. IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT THE ASSESSEE HAS GOT ITS ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE, THEREFORE, PENALTY UNDER SECTION 271B OF THE ACT SHOULD NOT BE LEVIED. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND DELETE THE PENALTY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:20 TH NOVEMBER, 2015 JJ:1611 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR