Shri Krishna Kumar Todi, Kolkata V. ITO, Watd - 35(3), Kolkata, Kolkata

ITA 800/KOL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4944 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 25-05-2011
• Court: TRIBUNAL
• Department Lawyers: AMIT KUMAR MOITRA
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI R.C.SHARMA, AM & HONBLE SRI GEORGE MATHAN, JM] ITA NO.799/KOL/2011 ASSESSMENT YEAR : 2003-04 ( APPELLANT ) -VS- (RESPONDENT) SRI LAXMI KANT TODI . I.T.O., WARD-35(3), KOLKATA KOLKATA (PAN:ABTPT 7710 N) ITA NO.800/KOL/2011 ASSESSMENT YEAR : 2003-04 ( APPELLANT ) -VS- (RESPONDENT) SRI KRISHNA KUMAR TODI . I.T.O., WARD-35(3), KOLKATA KOLKATA (PAN:ABTPT 7713 R) FOR THE APPELLANT: SHRI RAJEEVA KUMAR, ADVOCATE FOR THE RESPONDENT: SHRI AMIT KUMAR MOITRA, JCIT, SR.DR DATE OF HEARING : 02.12.2013 DATE OF PRONOUNCEMENT : 02. 12.2013. ORDER PER SHRI GEORGE MATHAN, JM I.T.A.NO.799/KOL/2011 IS AN APPEAL FILED BY THE ASS ESSEE SHRI LAXMI KANT TODI AGAINST THE ORDER OF LD. C.I.T.(A)-XXII, KOLKATA IN APPEAL NO.78/CIT(A)- XXII/ITO,WARD-35(3)/2005-06 DATED 11.05.2006 FOR AS SESSMENT YEAR 2003-04 AGAINST THE CONFIRMATION OF LEVY OF PENALTY U/S 271 B OF THE I.T.ACT.. I.T.A.NO.800KOL/2011 IS AN APPEAL FILED BY THE ASSE SSEE SHRI KRISHNA KUMAR TODI AGAINST THE ORDER OF LD. C.I.T.(A)-XXII, KOLKATA IN APPEAL NO. 77/CIT(A)- XXII/ITO,WARD-35(3)/2005-06 DATED 10.05.2006 FOR AS SESSMENT YEAR 2003-04 AGAINST THE CONFIRMATION OF LEVY OF PENALTY U/S 271 B OF THE I.T.ACT.. BOTH THE APPEALS INVOLVE THE SAME ISSUE AND RELATED TO EACH OTHER TH E SAME ARE DISPOSED OF BY THIS COMMON ORDER. ITA NO.799 AND 800/KOL/2011 SHRI LAXMI KANT TODI & SHR I KRISHNA KR.TODI VS ITO, WD-35(3),KOL A.YR.2003-04 2 2. SHRI RAJEEVA KUMAR, ADVOCATE APPEARED ON BEHALF OF THE ASSESSEE AND SHRI AMIT KUMAR MOITRA, JCIT, SR.DR APPEARED ON BEHALF OF THE REVENUE. 3. IN BOTH THE APPEALS THE ASSESSES HAVE RAISED TH E FOLLOWING GROUNDS :- 1. FOR THAT THE ORDER PASSED BY THE LD. CIT(A) IS BAD IN LAW AND FACTS. 2. FOR THAT THE LD. CIT(A) ERRED IN UPHOLDING THE O RDER PASSED BY THE AO U/S 271B. 3. FOR THAT THE LD. CIT(A) ERRED IN NOT APPRECIATIN G THE FACT THAT THE APPELLANT COULD NOT OBTAIN AND SUBMIT TAX AUDIT REPORT FOR REASONS BEYO ND HIS CONTROL. 4. FOR THAT THE APPELLANT PRAYS FOR THE RIGHT TO PU T, ADD, ALTER ADDITIONAL GROUNDS AT THE TIME OF HEARING. 4. THE APPEALS FILED BY THE ASSESSEE ARE DELAYED B Y 1773 DAYS. NECESSARY AFFIDAVIT FOR CONDONATION OF DELAY HAS BEEN FILED. AGAINST TH E AFFIDAVIT THE REVENUE HAS NOT BEEN ABLE TO PRODUCE ANY EVIDENCE TO SHOW OR EXPLAI N THAT THE DELAY IS NOT BONA FIDE. IN THE CIRCUMSTANCES THE DELAY IN FILING OF THESE A PPEALS ARE CONDONED AND THE SAME ARE DISPOSED OF ON MERITS. .5. IT WAS SUBMITTED BY THE LD. AR THAT THE ASSESS ES ARE IN THE BUSINESS OF DEALING IN SHARES AND SECURITIES. IT WAS THE SUBMISSION THAT T HIS IS THE FIRST YEAR IN WHICH THE TURN OVER OF THE ASSESSES CROSSED RS.40 LAKHS AND THEY W ERE LIABLE FOR AUDIT U/S 44AB OF THE IT ACT. IT WAS THE SUBMISSION THAT THE ASSESSEE WER E UNDER BONA FIDE BELIEF THAT THEIR ACCOUNTS WERE NOT REQUIRED TO BE AUDITED. IT WAS TH E SUBMISSION THAT THE AUDITOR, OF THE ASSESSEE HAD BEEN ENGAGED FOR CONDUCTING THE AUDIT OF THE ASSESSEE, WAS OUT OF STATION. IT WAS THE SUBMISSION THAT THE LETTER OF THE AUDITO R HAS ALREADY BEEN PRODUCED BEFORE THE AO AND EXPLAINED IN THE ORDER OF THE LD. CIT(A ). IT WAS THE SUBMISSION THAT AFTER THIS ASSESSMENT YEAR THERE HAS NEVER BEEN A DELAY A ND THE BONA FIDE OF THE ASSESSEE WAS LIABLE TO BE ACCEPTED. IT WAS THE SUBMISSION TH AT THE LD. CIT(A) DECIDED THE APPEAL AGAINST THE ASSESSEE ONLY ON THE GROUND THAT THE AS SESSEE WAS UNAWARE OF THE LAW AND THE ABSENCE OF THE COUNSEL WAS NOT ENOUGH FOR CONST ITUTING A REASONABLE CAUSE. IT WAS THE SUBMISSION THAT THE PENALTY ORDER BE CANCELLED. 6. IN REPLY THE LD. DR VEHEMENTLY SUPPORTED THE ORD ER OF THE LD. CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS ADM ITTED BY THE LD. CIT(A) IN HIS ORDER THE ASSESSEE HAS PRODUCED A LETTER FROM SHIR M.K.CHATTOPADHYAY, THE PROPRIETOR ITA NO.799 AND 800/KOL/2011 SHRI LAXMI KANT TODI & SHR I KRISHNA KR.TODI VS ITO, WD-35(3),KOL A.YR.2003-04 3 OF M/S. SIRKAR GUPTA & CO. THE ASSESSEE HAS GIVEN A REASONABLE EXPLANATION BEFORE THE LD. CIT(A). IT IS ALSO NOTICED THAT THIS LETTER AS FILED BY THE ASSESSEE FROM M.K.CHATTOPADHYAY IS NOT DISPUTED. THIS LETTER OF M R.M.K.CHATTOPADHYAY WAS SHOWN AT PAGE 14 OF THE PAPER BOOK. ON A TECHNICAL BREACH IN THE HANDS OF THE AUDITORS OF THE ASSESSEE CANNOT MAKE THE ASSESSEE LIABLE FOR PENALT Y. FURTHER IT IS NOTICED THAT THE DELAY IN OBTAINING THE AUDIT REPORT WAS ONLY 38 DAY S. THE DELAY FOR OBTAINING THE AUDITOR REPORT WAS ALSO ON ACCOUNT OF DELAY IN THE HANDS OF THE AUDITOR OF THE ASSESSEE WHO HAS ALSO ACCEPTED THE REASON FOR THE DELAY AND HAS FILED LETTER EXPLAINING THE REASON FOR DELAY. IN THE CIRCUMSTANCES WE ARE OF TH E VIEW THAT THE ASSESSEE HAS SHOWN REASONABLE CAUSE FOR CANCELLING OF PENALTY LEVIED U /S 271B OF THE IT ACT AND THE SAME IS CANCELLED. 8. IN THE RESULT THE APPEALS OF THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.12.2013. SD/- SD/- [R.C.SHARMA] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( ( ) )) ) DATE: 02.12.2013. R.G.(.P.S.) - COPY OF THE ORDER FORWARDED TO: 1. SHRI LAXMI KANT TODI, 19, AMRATOLLA STREET, 1 ST FLOOR, KOLKATA-700001. 2 SHRI KRISHNA KUMAR TODI, 19, AMRATOLLA STREET, 1 ST FLOOR, KOLKATA-700001. 3 . I.T.O., WARD-35(3), KOLKATA 4. CIT - KOLKATA. 5. CIT(A)-XXII, KOLKATA 6. CIT(A)DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, !/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA NO.799 AND 800/KOL/2011 SHRI LAXMI KANT TODI & SHR I KRISHNA KR.TODI VS ITO, WD-35(3),KOL A.YR.2003-04 4