M/s Sanjay Traders, Kolkata V. ITO, WD-37(3), KOLKATA, Kolkata

ITA 52/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1213 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 11-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACH ARJEEADDL
• Assessee Lawyers: MANISH TIWARI
• Keywords: Reasonable cause

Judgement Text

ITA NO.52/KOL/2016-M/S. SANJAY TRADERS A.Y.2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D KOL KATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM & SHRI A.T.VARKEY, JM ] ITA NO.52/KOL/2016 ASSESSMENT YEAR : 2006-07 M/S. SANJAY TRADERS -VERSUS- I.T.O., WARD-3 7(3), KOLKATA KOLKATA (PAN: AAMFS 1777 Q) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI MANISH TIWARI, FCA FOR THE RESPONDENT: SHRI ARINDAM BHATTACHARJEE, ADD L. CIT DATE OF HEARING : 26.09.2017. DATE OF PRONOUNCEMENT : 18.10.2017. ORDER PER J.SUDHAKAR REDDY, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX-(A)-11, KOLKATA RELATIN G TO A.Y. 2006-2007 ON THE FOLLOWING GROUNDS :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT{A)-11 IS WRONG AND UNJUSTIFIED IN CONFIRMING THE ACTION OF A SSESSING OFFICER WHO IMPOSED PENALTY OF RS. 75,800/- U/S 271FB OF INCOME TAX ACT , 1961 FOR DELAYED SUBMISSION OF FBT RETURN. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, LD. CIT(A) IN HOLDING THE ASSESSEE'S EXPLANATION FOR DELAY IN FILING FBT RETURN AS WITHOUT REASONABLE CAUSE HAS FAILED TO APPRECIATE THAT OBLIGATION OF F ILING FBT RETURN WAS BROUGHT IN THE STATURE FOR THE FIRST TIME IN RESPECT OF ASS ESSMENT YEAR 2006-07. 3. THAT THE ORDER OF LD. CIT{A)-11, KOLKATA CONFIRM ING THE PENALTY U/S 271FB OF INCOME TAX ACT, 1961 IS NOT SUSTAINABLE IN LAW IN V IEW OF THE JURISDICTIONAL TRIBUNAL'S DECISION IN ITA NO. 141/KOI/2013 DATED 0 6.08.2015 IN CASE OF M/S. ASHOK TRADING CO. - VS - ITO, WARD-45(2)KOLKATA. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A DDUCE OR AMEND ANY GROUND ON OR AT THE TIME OF HEARING OF THE APPEAL. ITA NO.52/KOL/2016-M/S. SANJAY TRADERS A.Y.2006-07 2 2. AFTER HEARING THE RIVAL CONTENTIONS WE FIND TH AT THE EXPLANATION GIVEN BY THE ASSESSEE FOR NOT FILING THE FBT RETURN WITHIN THE TIME PRESCRIBED U/S 115WH IS BONA FIDE. THIS WAS THE FIRST YEAR WHERE FBT WAS BROUGHT INTO THE STATUTE AND THE ASSESSEE WAS REQUIRED TO FILE A FBT RETURN. THE AO ISSUED NO TICE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND CONSEQUENTLY THE ASSESSE E FILED FBT RETURN IN RESPONSE. UNDER SIMILAR CIRCUMSTANCES THE HONBLE ITAT B BE NCH IN THE CASE OF M/S. ASHOK TRADING CO. VIDE ITA NO.141/KOL/2013 ORDER DATED 06 .08.2015 AT PARA 8 HELD AS FOLLOWS :- 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. THERE IS NO DISPUTE THAT THE A SSESSEE WAS REQUIRED TO FILE THE RETURN OF FRINGE BENEFIT. AS PER SUB-SECTION (2) OF SECTION 115WD, IF THE ASSESSEE HAD NOT FILED THE RETURN OF FRINGE BENEFIT BUT IN T HE OPINION OF ASSESSING OFFICER HE SHOULD HAVE FILED THE RETURN, THE ASSESSING OFFI CER WOULD ISSUE NOTICE REQUIRING IT TO FILE SUCH RETURN, BUT NO SUCH NOTIC E WAS ISSUED BY THE ASSESSING OFFICER. ALL THE FACTS CAME TO THE NOTICE OF THE AS SESSING OFFICER ONLY IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THERE IS NO CH ARGE OF THE DEPARTMENT THAT THE ASSESSEE CONCEALED ANY PARTICULARS OR SUBMITTED INACCURATE PARTICULARS OF INCOME. NO DOUBT, THERE IS SPECIFIC REQUIREMENT OF FILING THE RETURN OF INCOME, BUT SINCE IT WAS THE FIRST YEAR OF APPLICABILITY OF FRI NGE BENEFIT TAX, WHEN FBT RETURN WAS REQUIRED TO BE FILED AND DUE TAXES WERE PAID BY ASSESSEE, THEREFORE, WE ARE OF THE OPINION THAT THE DEFAULT ON THE PART OF THE ASS ESSEE CANNOT BE CONSIDERED AS MALAFIDE AND WE CANCEL THE PENALTY FOR NON-FILING O F RETURN. 3. AS THE FACTS ARE SIMILAR, WE ARE CONVINCED THAT THE EXPLANATION OF THE ASSESSEE IS A BONA FIDE ONE. UNDER THESE CIRCUMSTANCES WE CANCE L THE PENALTY LEVIED U/S 271FB OF THE INCOME TAX ACT, 1961 (ACT) AND ALLOW THIS APPEA L OF THE ASSESSEE. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE I S ALLOWED. O RDER PRONOUNCED IN THE COURT ON 18.10.2017. SD/- SD/- [A.T.VARKEY] [ J.SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18.10.2017. [RG SR.PS] ITA NO.52/KOL/2016-M/S. SANJAY TRADERS A.Y.2006-07 3 COPY OF THE ORDER FORWARDED TO: 1.M/S. SANJAY TRADERS, 10A, GRANT LANE, KOLKATA-700 012. 2. I.T.O., WARD-37(3), KOLKATA. 3. C.I.T.(A)- 11, KOLKATA 4. C.I.T-7, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES