Smt Mini Jayaraj, Pathanamthitta V. ITO, Kollam

ITA 486/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61498 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 16-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Revised return

Judgement Text

1 ITA NO. 486/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 486/COCH/2010 (ASSESSMENT YEAR 2006-07) SMT. MINI JAYARAJ VS THE ITO, WD.2 ASWATHY, BAKER & SUPER SHOPE KOLLAM ADOOR PAN : AEZPJ3152K (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 29-05-2012 DATE OF PRONOUNCEMENT : 01-06-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM DATED 16-06-2010 PERTAI NING TO ASSESSMENT YEAR 2006-07 CONFIRMING PENALTY LEVIED U/S 271B OF THE ACT. 2. NO ONE APPEARED FOR THE ASSESSEE WHEN THE APPEAL WAS TAKEN UP FOR HEARING. THEREFORE, WE HEARD THE LD.DR AND PROCEEDED TO DISP OSE OF THE APPEAL ON MERIT. 3. THE LD.DR SUBMITTED THAT THE ASSESSEE HAS NOT FI LED THE AUDIT REPORT WITHIN THE DUE DATE. THEREFORE, THE ASSESSING OFFICER LEVIED PENALTY U/S 271B OF THE ACT. ON A QUERY FROM THE BENCH THAT IT TRANSPIRES FROM THE GR OUNDS OF APPEAL AND THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) THAT THE ASSESSEE HAD FILED THE AUDIT REPORT ALONG WITH THE RETURN OF INCOME WITHIN THE DUE DATE WHEREAS FR OM THE PENALTY ORDER IT REVEALS THAT 2 ITA NO. 486/COCH/2010 THE PENALTY WAS LEVIED ON THE GROUND THAT THE AUDIT REPORT WAS NOT FILED ALONG WITH THE REVISED RETURN WHICH WAS FILED SUBSEQUENTLY, THE LD .DR SUBMITTED THAT IT HAS TO BE VERIFIED WHETHER THE ASSESSEE HAS FILED THE AUDIT R EPORT ALONG WITH THE ORIGINAL RETURN OF INCOME. THEREFORE, THE LD.DR SUBMITTED THAT THE MA TTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE LD.DR W E FIND THAT IT HAS TO BE VERIFIED AS TO WHETHER THE ASSESSEE HAS FILED THE AUDIT REPO RT ALONG WITH THE RETURN OF INCOME OR NOT. IF THE ASSESSEE HAS ALREADY FILED THE AUDIT R EPORT ALONG WITH THE ORIGINAL RETURN OF INCOME THERE CANNOT BE ANY QUESTION OF LEVY OF PENA LTY U/S 271B OF THE ACT. SINCE THE FACT NEEDS TO BE VERIFIED BY THE ASSESSING OFFICER, THIS TRIBUNAL IS OF THE OPINION THAT THE MATTER SHOULD GO TO THE FILE OF THE ASSESSING OFFIC ER. ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE OF LEVY OF PENALTY U/S 271B IS REMANDED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SH ALL EXAMINE THE ISSUE AFRESH AND FIND OUT WHETHER THE ASSESSEE HAS FILED THE AUDIT REPORT ALO NG WITH THE ORIGINAL RETURN OF INCOME OR NOT AND THEREAFTER DECIDE THE ISSUE IN ACCORDANC E WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESEE IS ALLO WED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01 ST JUNE, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 01 ST JUNE, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH