Smt. SADHANA SHIVHARE, Ujjain V. The ITO, Shajapur

ITA 731/IND/2014

• Counselvise Citation: 73122714 RSA 2014
• Duration Of Justice: 1 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-11-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 17-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MEENA
• Assessee Lawyers: S S DESHPANDE
• Keywords: Reasonable cause
• Section: 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO. 729 TO 731/ IND/2014 A.YS. : 2008-09 TO 2010-11 SMT.SADHNA SHIVHARE, ITO, SARANGPUR VS. SHAJAPUR APPELLANT RESPONDENT PAN NO. BMOPS0966E APPELLANTS BY : SHRI S.S.DESHPANDE, C. A. RESPONDENT BY : SHRI R. R. MEENA, DR O R D E R PER D. T. GARASIA, J.M. ALL THESE APPEALS RELATE TO ONE ASSESSEE, THEREFORE , THEY ARE DISPOSED OF BY THIS COMBINED ORDER. DATE OF HEARING : 02.11.2015. DATE OF PRONOUNCEMENT : 01.12 . 2015 SMT. SADHANA SHIVHARE,SARANGPUR. I.T.A.NOS. 729 TO 731/IND/2014 A.YS. 2008-09 TO 2010-11 2 2 2. THE BRIEF FACTS WHICH ARE COMMON IN THE ALL THE ASSESSMENT YEARS ARE THAT THE ASSESSEE IS DOING THE BUSINESS OF LIQUOR TRADING. DURING THE YEARS UNDER CONSIDERATIO N THE ASSESSEE HAS SHOWN THE TOTAL TURNOVER OF RS. 2,72,9 1,200/-, RS. 4,00,81,293/- AND RS. 5,17,49,119/- FOR THE ASSESS MENT YEARS 2008-09, 2009-10 AND 2010-11 RESPECTIVELY. THE ASSE SSEE IS REQUIRED TO OBTAIN THE AUDIT REPORT IN FORM 3CB AND 3CD AS SPECIFIED UNDER SECTION 44AB OF THE INCOME-TAX ACT, 1961, BEFORE THE SPECIFIED DATES I.E. 30.09.2008, 30.09.2 009 & 30.09.2010 FOR RESPECTIVE ASSESSMENT YEARS. THE ASS ESSEE HAS FILED THE AUDIT REPORT DATED 09.11.2011 BEFORE THE AO. THE ASSESSEE HAS COMMITTED DEFAULT U/S 271B OF THE INCO ME-TAX ACT, 1961, AND AO HAS IMPOSED THE PENALTY OF RS. 1 LAC EACH IN ALL THE ASSESSMENT YEARS. 3. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DISMISSED ALL THESE APPEALS OF THE ASSESSEE. 4. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. SMT. SADHANA SHIVHARE,SARANGPUR. I.T.A.NOS. 729 TO 731/IND/2014 A.YS. 2008-09 TO 2010-11 3 3 AUTHORIZED REPRESENTATIVE SUBMITTED THAT HE HAS NO OBJECTION IF THE PENALTY IS CONFIRMED, BUT HE STATED THAT WHEN T HE ACCOUNTS WERE NOT AUDITED IN TIME, THEREFORE, THE PENALTY FO R ASSESSMENT YEAR 2008-09 IS JUSTIFIED, BUT FOR ASSESSMENT YEARS 2009-10 AND 2010-11, THE PENALTY U/S 271B IS NOT VALID BECAUSE WHEN THE ACCOUNTS OF ASSESSMENT YEAR 2008-09 WAS NOT FINALIZ ED IN TIME, THEREFORE, THE ACCOUNTS OF SUBSEQUENT YEARS ALSO DE LAYED FOR WANT OF FINALIZATION OF ACCOUNTS OF EARLIER YEARS. THE ASSESSEE HAD REASONABLE CAUSE FOR NOT GETTING HIS ACCOUNTS A UDITED. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT DUE TO SICKNESS OF THE ACCOUNT, HE COULD NOT FINALIZE THE ACCOUNTS IN TIME. THE MEDICAL CERTIFICATES OF THE ACCOUNTANT WERE FILED D URING THE PERIOD AND WHEREIN THE DETAILS OF THE NATURE OF DE CEASE WAS EXPLAINED BEFORE THE CIT(A) AND IF THE ACCOUNTS ARE NOT AUDITED FOR EARLIER YEARS, THE ASSESSEE HAD REASONABLE CAUS E FOR NOT FILING THE ACCOUNTS AUDITED IN SUBSEQUENT YEARS. TH EREFORE, THE PENALTY MAY BE LEVIED ONLY FOR THE ASSESSMENT YEAR 2008-09 AND PENALTY FOR ASSESSMENT YEARS 2009-10 AND 2010-11 SH OULD BE DELETED. SMT. SADHANA SHIVHARE,SARANGPUR. I.T.A.NOS. 729 TO 731/IND/2014 A.YS. 2008-09 TO 2010-11 4 4 5. THE LD. DR OBJECTED TO THE PROPOSITION OF THE ASSES SEE ON THE GROUND THAT THE ASSESSEE HAS WRONGLY CONTENDED BEFORE THE AO THAT THE ACCOUNTANT REMAINED SICK, BUT THE LD. C IT(A) HAS EXAMINED THE CERTIFICATE AND AFTER EXAMINATION OF T HE CERTIFICATE, THE LD. CIT(A) CONSIDERED THE DELAY AND THE AUDIT R EPORT WAS FILED AFTER TWO YEARS AND 15 DAYS LATE. THEREFORE, THE SI CKNESS OF THE ACCOUNTANT WAS DOUBTED BY THE LD. CIT(A) AND WHEN T HE ASSESSEE HAS NOT OBTAINED THE REPORT WITHIN TIME, T HE PENALTY HAS TO BE IMPOSED FOR TWO SUBSEQUENT YEARS ALSO. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT DURING THE COURSE OF HEARING, THE LD. AUTHORIZED RE PRESENTATIVE CONCEDED BEFORE US THAT IN ASSESSMENT YEAR 2008-09, THE ASSESSEE HAD TURNOVER OF RS. 2,72,91,200/-. THEREFO RE, THE ASSESSEE IS REQUIRED TO OBTAIN THE AUDIT RE0PORT IN FORM NO.3CB AND 3CD AS SPECIFIED UNDER SECTION 44AB OF THE ACT BEFORE THE SPECIFIED DATE I.E. 30.09.2008. WE FIND THAT THE AS SESSEE HAD NOT SHOWN ANY REASONABLE CAUSE FOR NOT OBTAINING THE AU DIT REPORT AS SPECIFIED U/S 44AB OF THE ACT BEFORE THE SPECIFI ED DATE. SMT. SADHANA SHIVHARE,SARANGPUR. I.T.A.NOS. 729 TO 731/IND/2014 A.YS. 2008-09 TO 2010-11 5 5 THEREFORE, THE PENALTY U/S 271B FOR ASSESSMENT YEAR 2008 - 09 IS JUSTIFIED. THEREFORE, WE DISMISS THE APPEAL FOR THE ASSESSMENT YEAR 2008-09. 7. IN RESPECT OF ASSESSMENT YEARS 2009-10 AND 2010-11, AS WE HAVE ALREADY HELD THAT THE ASSESSEE HAD REASONAB LE CAUSE FOR DELAYING THE ACCOUNTS AUDITED FOR ASSESSMENT YEAR 2 008-09, WE HAVE ALREADY CONFIRMED THE PENALTY OF RS. 1 LAC U/S 271B OF THE INCOME-TAX ACT, 1961, BUT WE FIND THAT AS THE ACCOU NTS FOR ASSESSMENT YEAR 2008-09 WAS NOT COMPLETED IN TIME, THE AUDITED ACCOUNTS FOR ASSESSMENT YEAR 20098-10 AND 2 010-11 WERE DELAYED AS THE EARLIER ACCOUNTS WERE NOT AUDIT ED. THEREFORE, IN OUR OPINION, THE ASSESSEE HAD REASONA BLE CAUSE FOR NOT GETTING HIS ACCOUNTS AUDITED BEFORE THE DUE DAT ES AS SPECIFIED U/S 44AB OF THE INCOME-TAX ACT, 1961. THE REFORE, WE DELETE THE PENALTY OF RS. 1 LAC EACH IMPOSED U/S 27 1-B FOR ASSESSMENT YEARS 2009-10 AND 2010-11. 8. IN THE RESULT, THE APPEAL IN I.T.A.NO. 729/IND/2014 FOR ASSESSMENT YEAR 2008-09 IS DISMISSED AND APPEALS IN I.T.A.NOS. SMT. SADHANA SHIVHARE,SARANGPUR. I.T.A.NOS. 729 TO 731/IND/2014 A.YS. 2008-09 TO 2010-11 6 6 730 & 731/IND/2014 FOR ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 ARE ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 1 ST DECEMBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 1 ST DECEMBER, 2015. CPU* 426