M/s. Kankaria Industries , Nokha V. ITO, Nokha

ITA 567/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6725 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 19-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SINGI
• Keywords: Reasonable cause
• Section: 273B; 92E; 2; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO.567/JODH/2018 (ASSESSMENT YEAR-2014-15) M/S. KANKARIA INDUSTRIES PAN:AABFK1838R C/O RAJENDRA JAIN ADVOCATE, 106, AKSHAY DEEP COMPLEX, 5 TH B ROAD, SARDARPURA, JODHPUR. VS THE INCOME TAX OFFICER, AAYKAR BHAWAN, NOKHA (BIKANER) (APPELLANT) (RESPONDENT) APPELLANT BY MS. RAKSHA BIRLA, CA RESPONDENT BY SH. P.K. SINGI, DR DATE OF HEARING 06.05.2019 DATE OF PRONOUNCEMENT 06.05.2019 O R D E R PER A. T. VARKEY, J.M. THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), BIKANER D ATED 10.10.2018 FOR AY 2014-15 WHEREIN THE LD.CIT(A) WAS PLEASED TO CONFIRM THE PENALTY LEVIED U/S. 217BA OF THE INCOME-TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT) BY THE AO. 2. BRIEF FACTS OF THE CASE ARE THAT THE AO NOTED TH AT THE ASSESSEE HAD FILED RETURN OF INCOME ELECTRONICALLY ON 26.11.2014 AND THERE WAS SPECIFIED DOMESTIC TRANSACTION AS MENTIONED IN SECT ION 92BA OF THE ACT AGGREGATING TO RS.6,78,61,350/-. THE AO NOTED THAT AS PER SECTION 92E 2 OF THE ACT EVERY PERSON WHO HAS ENTERED INTO AN INT ERNATIONAL TRANSACTION OR SPECIFIED DOMESTIC TRANSACTION SHALL OBTAIN A RE PORT FROM ACCOUNTANT AND FURNISH SUCH REPORT ON OR BEFORE THE SPECIFIED DATE IN THE PRESCRIBED FORM DULY SIGNED IN THE PRESCRIBED MANNER BY SUCH A CCOUNTANT AND SET FORTH SUCH PARTICULAR AS MAY BE PRESCRIBED IN FORM 3CEB. HOWEVER, ACCORDING TO AO, THE ASSESSEE HAS NOT FILED THE REP ORT U/S.92E IN THE FORM 3CEB ELECTRONICALLY WHILE FILING THE RETURN OF INCOME AND SINCE THE ASSESSEE HAS NOT FILED THE REPORT ELECTRONICALLY BE FORE THE PRESCRIBED DATE, HE IMPOSED THE PENALTY OF RS. 1 LAC ON THE AS SESSEE. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A), WHO WAS PLEASED TO CONFIRM THE SAME. AGGRIEVED, THE ASSESSEE IS BE FORE US. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE LD. AR DREW OUR ATT ENTION TO THE FACT THAT ASSESSEE BEFORE THE PRESCRIBED PERIOD HAD OBTA INED REPORT FROM THE CHARTERED ACCOUNTANT FOR THE SPECIFIED DOMESTIC TRA NSACTION IN PRESCRIBED FORM 3CEB ON 15.10.2014 AS PER SECTION 9 2E OF THE ACT IN THE PRESCRIBED FORM NO. 3CEB ON OR BEFORE THE 30 TH DAY OF NOVEMBER, 2014 AND BECAUSE OF TECHNICAL GLITCHES THOUGH THE R ETURN OF INCOME WAS UPLOADED FORM NO. 3CEB COULD NOT BE UPLOADED WHICH FACT THE ASSESSEE CAME TO KNOW LATER ONLY WHEN THE SCRUTINY ASSESSMEN T WAS CARRIED OUT AND THEREAFTER, IMMEDIATELY THE ASSESSEE HAD FILED REPORT IN FORM 3 CEB IN MANUAL FORM BEFORE THE AO WHICH FACT HAS NOT BEE N DENIED BY THE AO. ACCORDING TO LD. AR, DUE TO THE TECHNICAL GLIT CHES, THE FORM NO. 3CEB COULD NOT BE UPLOADED CANNOT BE A GROUND TO IM POSE PENALTY U/S. 271BA OF THE ACT AND SINCE THE ASSESSEE HAD ALREADY OBTAINED THE FORM NO. 3CEB BEFORE THE PRESCRIBED DATE, THE TECHNICAL FAULT OF THE INTER-NET CANNOT BE A GROUND TO LEVY PENALTY ON THE ASSESSEE AND, THEREFORE, THERE IS REASONABLE CAUSE FOR NOT UPLOADING THE REPORT IN FORM 3CEB ON TIME AND, THEREFORE, NO PENALTY U/S. 271BA OF THE ACT CA N BE LEVIED ON THE ASSESSEE AND SHE PRAYS THAT THE PENALTY MAY BE DEL ETED. 3 4. PER CONTRA, THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND CITED THE DECISION OF THE ITA T, AMRITSAR BENCH IN THE CASE OF AJIT SINGH RANA VS. ACIT (2013) 33 TAXM ANN.COM 502 (AMRITSAR. TRIB.) WHICH HAS BEEN REPRODUCED BY THE LD. CIT(A) AT PAGE 6 OF THE IMPUGNED ORDER. ACCORDING TO LD. DR, WHEN THE ASSESSEE COULD HAVE UPLOADED THE RETURN OF INCOME ELECTRONICALLY, THEN WHY THE ASSESSEE COULD NOT HAVE BEEN UPLOADED THE REPORT IN FORM 3CE B AND ACCORDING TO HIM THE CONTENTION OF THE ASSESSEE IS UNBELIEVABLE AND, THEREFORE, HE DOES NOT WANT US TO INTERFERE IN THE ORDER PASSED B Y THE LD. CIT(A). 5. HAVING HEARD BOTH THE SIDES AND AFTER CAREFULLY PERUSING THE RECORDS, WE NOTE THAT THE FACTS STATED ABOVE ARE NO T CONTROVERTED AND, THEREFORE, ARE NOT REPEATED FOR THE SAKE OF BREVITY . THE FACT THAT ASSESSEE HAD FILED THE RETURN OF INCOME ELECTRONICA LLY ON 26.11.2014 STANDS UNCONTROVERTED. THE ASSESSEE HAD TRANSACTED UNSPECIFIED DOMESTIC TRANSACTION HAS ALSO NOT CONTROVERTED AND THIS FACT HAD BEEN ADMITTED BY THE ASSESSEE. ACCORDING TO LD. AR, THO UGH THE RETURN OF INCOME COULD BE SUCCESSFULLY UPLOADED ELECTRONICAL LY ON 26.11.2014, HOWEVER, THOUGH THE AUDIT REPORT PRESCRIBED IN FORM NO. 3CEB WAS IN THE POSSESSION OF THE ASSESSEE ON 15.10.2014 (WHICH WAS WELL BEFORE THE PRESCRIBED DATE FOR FILING THE AUDIT REPORT U/S. 92 E OF THE ACT.) THE UPLOADING OF FORM NO.3CEB COULD NOT MATERIALIZE FOR NO FAULT OF ASSESSEE. WE NOTE THAT THE AUDITOR HAS AUDITED THE BOOKS OF THE ASSESSEE AS PER STATUTE AND SINCE AS PER THE ACT, THE ASSES SEE WAS REQUIRED TO FILE SUCH REPORT IN FORM NO. 3CEB WHILE UPLOADING THE RE TURN OF INCOME, IT IS TAKEN NOTE THAT THE ASSESSEE GOT THE AUDIT REPOR T IN THE PRESCRIBED FORM NO. 3CEB ON 15.10.2014 WHICH WAS WELL WITHIN T HE PRESCRIBED TIME STIPULATED BY STATUTE AND THE RETURN OF INCOME WAS UPLOADED LATER ONLY ON 27.11.2014. THOUGH THE RETURN OF INCOME CO ULD BE UPLOADED FORM NO. 3CEB DUE TO THE GLITCHES IN THE INTER-NET IT COULD NOT BE UPLOADED FOR NO FAULT OF THE ASSESSEE AND THE FORM 3CEB REPORT PREPARED MANUALLY HAS BEEN PLACED BEFORE THE AO WHO LATER CO MPLETED THE 4 ASSESSMENT AFTER PERUSAL OF THE SAME. IN SUCH A SC ENARIO, DUE TO THE ELECTRONIC GLITCHES OF THE INTER-NET AT THE TIME OF UPLOADING IS CONSIDERED REASONABLE CAUSE, WHICH OMISSION CANNOT BE ATTRIBUT ED ON THE ASSESSEE AND THEREFORE CANNOT BE GROUND FOR LEVY OF PENALTY U/S. 271BA OF THE ACT. THEREFORE, IN THE LIGHT OF SECTION 273B OF TH E ACT WHICH PROVIDES THAT NO PENALTY, INTER ALIA, U/S. 271BA OF THE ACT WILL BE LEVIABLE IF THERE IS REASONABLE CAUSE FOR THE FAILURE OF THE ASSESSE E TO COMPLY WITH THE PROVISIONS MENTIONED THEREIN. IN THIS VIEW OF THE MATTER AND IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE, WE DIRECT THE DELETION OF PENALTY LEVIED ON THE ASSESSEE U/S. 271BA OF THE ACT. THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 06.05.2019 SD/- SD/- (N.K. SAINI) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 06.05.2019 J.D. SR. PS. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. % , '% , * / DR, ITAT, JODHPUR 6. - / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR