AJMER ZILA DUGDH UTPADAK SAHKARI SANGH LTD., Ajmer V. ACIT, Ajmer

ITA 790/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2090 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-03-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 01-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Section: 92E; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR ] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 790/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 M/S AJMER ZILA DUGDH UTPADAK SAHKARI SANGH LTD., OPP- HMT, BEAWAR ROAD, AJMER. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABAA 0141 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/05/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 19/05/2017 VKNS'K@ ORDER PER: KUL BHARAT, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 13/06/2016 PASSED BY THE LD. CIT(A), AJMER FOR THE A .Y. 2013-14, WHEREIN THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE IMPUGNED PENALTY ORDER U/S 271B R/W SEC.274 OF THE ACT DATED 01.12.2014 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE , THE SAME KINDLY BE QUASHED. 2. RS.1,50,000/-: THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE IMPUGNED PENALTY U/S 271B R/W ITA 790/JP/2016_ M/S AJMER ZILA DUGDH UTPADAK SAHKARI SANGH LTD. VS A CIT 2 SEC.274 OF THE ACT OF RS. 1,50,000/-. THE PENALTY S O IMPOSED & CONFIRMED BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE DELETED IN FULL. 3. THE ID. CIT(A) ERRED IN LAW AS WELL AS ON THE FA CTS OF THE CASE IN CONFIRMING THE IMPUGNED PENALTY IMPOSED U/S 271B R/ W SEC.274 OF THE ACT, COMPLETELY IGNORING THERE DID EXIST A R EASONABLE CAUSE U/S 271B OF THE ACT. THE PENALTY SO IMPOSED & CONFI RMED BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE DELETED IN FULL. 2. THE ONLY EFFECTIVE ISSUE INVOLVED IN THIS APPEAL IS AGAINST CONFIRMING THE PENALTY U/S 271B READ WITH SECTION 274 OF THE IN COME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE HAD FILED E- RETURN DECLARING TOTAL INCOME OF RS. 1,57,21,300/- ON 20/09/2013. THE ASSESSING OFFICER OBSERVED THAT AS PER NOTIFICATION NO. 34 DATED 1 ST MAY, 2013 ISSUED BY THE CBDT WHERE THE ASSESSEE IS REQUIRE D TO FURNISH REPORT OF AUDIT U/S 44AB OR 92E OF THE ACT, WHICH AUDIT REP ORT NEEDS TO BE UPLOADED ELECTRONICALLY. HENCE, FILING OF TAX AUDIT REPORT IN FORM NO. 3CA/3CB/3CD AND 3CEB IN ELECTRONIC FORM WAS MADE MAN DATORY FOR THE ASSESSMENT YEAR 2013-14. HE OBSERVED THAT ON PERUSA L OF THE REPORT, THE ASSESSEE FILED E-RETURN VIDE ACKNOWLEDGEMENT NO. 802 207831290913 ON 29/9/2013 BUT THE REQUISITE AUDIT REPORT IN THE REQ UISITE FORM IN ELECTRONIC FORM FOR ASSESSMENT YEAR 2013-14 WAS NOT SUBMITTED. ACCORDINGLY, A ITA 790/JP/2016_ M/S AJMER ZILA DUGDH UTPADAK SAHKARI SANGH LTD. VS A CIT 3 SHOW CAUSE NOTICE FOR LEVY OF PENALTY U/S 271B OF TH E ACT WAS ISSUED TO THE ASSESSEE AND SUBSEQUENTLY, THE IMPUGNED PENALTY WAS IMPOSED. 3. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A), WHO AFTER CON SIDERING THE SUBMISSIONS, DISMISSED THE APPEAL. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. LD. AR OF THE ASSESSEE HAS REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. HE SUBMITTED THAT DEFAULT WAS NOT DELIB ERATE, THERE WAS CERTAIN TECHNICAL ASPECTS WHICH RESULTED INTO DELAY OF UPLOADING THE REQUISITE AUDIT REPORT. HE SUBMITTED. LD. COUNSEL S UBMITTED THAT TECHNICAL SNAG AS OCCURRED IN UPLOADING OF AUDIT REPORT ON WEB WAS BEYOND THE CONTROL OF THE ASSESSEE. HE SUBMITTED THAT UNDER TH E IDENTICAL FACTS, THE PENALTY WAS DELETED BY THE TRIBUNAL. HE PLACED RELIAN CE ON THE DECISION OF THE HONBLE JAIPUR ITAT RENDERED IN THE CASE OF RAJ KUMARI BAFNA VS. ITO IN ITA NO. 837/JP/2016 ORDER DATED 14/12/2016, RAJE NDRA KUMAR SHAH VS ITO IN ITA NO. 944/JP/2016 ORDER DATED 27/12/2016 AN D SHRI GOVIND GARG VS ITO IN ITA NO. 781/JP/2016 ORDER DATED 31/01 /2017. 5. ON THE CONTRARY, THE LD DR HAS VEHEMENTLY SUPPOR TED THE ORDER OF THE ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE ORDERS OF ITA 790/JP/2016_ M/S AJMER ZILA DUGDH UTPADAK SAHKARI SANGH LTD. VS A CIT 4 THE AUTHORITIES BELOW. WE FIND THAT THE ITAT, JAIPUR BENCH IN THE CASE OF M/S VIJAY FOOD PRODUCTS VS. ITO IN ITA NO. 707/JP/2 016 ORDER DATED 31/3/2017 HAS HELD AS UNDER:- 2.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. THE RETURN OF INCOME HAS BEEN ELECTRONIC ALLY FILED BY THE ASSESSEE ON 18.09.2013 WHEREIN THE PARTICULARS REGA RDING THE AUDIT REPORT HAVE BEEN DULY DISCLOSED BY THE ASSESSEE. IN THE SAID RETURN IT HAS BEEN STATED CLEARLY THAT MR. SUNIL PORWAL, THE AUDI TOR OF THE COMPANY HAS SIGNED THE AUDIT REPORT ON 04.09.2013 AND THE S AID AUDIT REPORT HAS BEEN FURNISHED ON 18.09.2013. THE SAID INCOME TAX RETURN WHICH HAS BEEN FILED ELECTRONICALLY AND CONTENTS THEREOF INCL UDING THE AUDIT PARTICULARS HAVE NOT BEEN DISPUTED BY THE REVENUE. IT IS THEREFORE NOT IN DISPUTE THAT THE AUDIT REPORT HAS BEEN OBTAINED BE FORE DUE DATE OF FILING OF THE RETURN OF INCOME AND THE PARTICULARS THEREOF HAVE BEEN DULY DISCLOSED IN THE RETURN OF INCOME ELECTRONICALLY FI LED. IT WAS FURTHER SUBMITTED BY THE LD AR THAT THE AUDIT REPORT IN FOR M 3CB/3CD HAS BEEN UPLOADED ON THE SAME DATE I.E. 18.9.2013 AS DATE OF FILING OF THE RETURN OF INCOME BUT DUE TO SOME TECHNICAL SNAG IN THE E-F ILING SYSTEM OF I.T SYSTEM, THE SAME COULD NOT BE VIEWED LATER ON BY TH E AO, AT THE SAME TIME, THE LD AR HAS NOT BEEN ABLE TO FURNISH ANY CO NFIRMATION THAT THE AUDIT REPORT HAS BEEN UPLOADED ELECTRONICALLY ON 18 .09.2013. IT IS ALSO A FACT THAT THE AUDIT REPORT HAS SUBSEQUENTLY BEEN UP LOADED AFRESH AFTER THE ASSESSEE BECOME AWARE OF THE TECHNICAL SNAG AND ALSO A HARD COPY HAS BEEN FURNISHED BEFORE THE AO WHICH IS AGAIN NOT DISPUTED BY THE REVENUE. THE INTENTION BEHIND CARRYING OUT THE AUDI T U/S 44AB AND FURNISHING A COPY OF THE AUDIT REPORT TO THE AO IS TO AID AND ASSIST THE LATTER IN COMPLETING THE ASSESSMENT PROCEEDINGS. I T IS NOT THE CASE OF THE REVENUE THAT ANY PREJUDICE OR HINDRANCE IS CAUS ED TO THE REVENUE OR THE AUDIT REPORT HAS BEEN FILED AFTER THE CLOSE OF THE ASSESSMENT PROCEEDINGS. TAKING INTO CONSIDERATION THE INTENTI ON OF THE LEGISLATURE, AND THE FACT THAT THE AUDIT REPORT HAS SUBSEQUENTLY BEEN UPLOADED ELECTRONICALLY AND ALSO HARD COPY HAS BEEN FURNISHE D BEFORE THE AO BEFORE THE COMPLETION OF THE ASSESSMENT PROCEEDINGS , NON FURNISHING OF THE RETURN ELECTRONICALLY ON 18.09.2013 IS MERELY A TECHNICAL BREACH OF THE PROVISIONS OF THE ACT AND RESPECTFULLY FOLLOWIN G THE DECISION OF THE ITA 790/JP/2016_ M/S AJMER ZILA DUGDH UTPADAK SAHKARI SANGH LTD. VS A CIT 5 HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN STEE L LTD. VS. STATE OF ORISSA (SUPRA), PENALTY LEVIED U/S 271B OF THE ACT IS HEREBY DIRECTED TO BE DELETED. THE FACTS ARE IDENTICAL IN THE PRESENT CASE, THEREF ORE, BY TAKING A CONSISTENT VIEW, WE DIRECT THE ASSESSING OFFICER TO D ELETE THE PENALTY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/05/2017. SD/- SD/- HKKXPAN DQY HKKJR (BHAGCHAND) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19 TH MAY, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S AJMER ZILA DUGDH UTPADAK SAHKARI SANGH LTD., AJMER. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CIRCLE-2, AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 790/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR