M/s U.P State Agro Industrial Corporation Limited, Lucknow V. DY. Commissioner of Income Tax-Vi, Lucknow

ITA 84/LKW/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1166 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 30-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

I.T.A. NO.84/LKW/2017 ASSESSMENT YEAR:2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.84/LKW/2017 ASSESSMENT YEAR:2011-12 U.P. STATE AGRO INDUSTRIAL CORPORATION LIMITED, 22 BABASAHEB BHIM RAO AMBEDKAR MARG, LUCKNOW. PAN:AAACU 2653 G VS. DY.C.I.T., RANGE-VI, LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A) DATED 30/11/2016. 2. THE ONLY GRIEVANCE RAISED BY THE ASSESSEE IN ITS GROUNDS OF APPEAL IS THE ACTION OF LEARNED CIT(A) BY WHICH HE HAS CONFIR MED THE PENALTY WHICH THE ASSESSING OFFICER HAD IMPOSED U/S 271B OF THE A CT. 3. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT ASSE SSEE IS A GOVERNMENT ORGANIZATION AND ITS ACCOUNTS ARE BEING AUDITED BY CAG AND THERE GENERALLY OCCURS DELAY IN THE APPOINTMENT OF THE AUDITORS AND THEREFORE, THERE WAS DELAY IN STATUTORY AUDIT. HOWEVER, TAX AUDIT WAS G OT DONE FROM CHARTERED ACCOUNTANT SHRI SATISH ARORA & CO. AND TAX AUDIT RE PORT WAS DULY FILED ALONG WITH THE RETURN OF INCOME THEREFORE, THERE WAS NO V IOLATION OF SECTION 44AB APPELLANT BY SHRI K. R. RASTOGI, F.C.A. RESPONDENT BY SHRI HIMANSHU PANDEY, D. R. DATE OF HEARING 16 / 01 /201 8 DATE OF PRONOUNCEMENT 18/01/2018 I.T.A. NO.84/LKW/2017 ASSESSMENT YEAR:2011-12 2 AND PENALTY WAS NOT IMPOSABLE. IT WAS SUBMITTED TH AT LEARNED CIT(A) HAS CONFIRMED THE PENALTY RELYING ON AN ORDER OF THE I. T.A.T., ALLAHABAD BENCH IN THE CASE OF U.P. NALKOOP NIGAM LIMITED AND HAS A LSO RELIED ON THE DECISION OF I.T.A.T., LUCKNOW BENCH IN THE CASE OF U.P. STATE AGRO INDUSTRIAL CORPORATION LTD. IT WAS SUBMITTED THAT THESE TWO CASE LAWS ARE NOT APPLICABLE TO THE FACTS OF THE ASSESSEE AS IN THOSE CASES THE ASSESSEE HAD NOT GOT THE AUDIT DONE FOR THE PURPOSE OF TAX AUDIT REPORT WHEREAS IN THE PRESENT CASE, IT IS UNDISPUTED FACT THAT ASSESSEE H AD GOT TAX AUDIT COMPLETED AND HAD OBTAINED TAX AUDIT REPORT AND HAD FILED ALO NG WITH THE RETURN OF INCOME. IT WAS SUBMITTED THAT THE ORDER OF LEARNED CIT(A) ITSELF CONFIRMS THAT ASSESSEE HAD FILED AUDIT REPORT BUT HE OBSERVE D THAT THE ASSESSING OFFICER IMPOSED THE PENALTY AS THE AUDIT REPORT DID NOT HAVE PROFIT & LOSS ACCOUNT, BALANCE SHEET AND RELEVANT SCHEDULES. IN VIEW OF THE ABOVE, IT WAS ARGUED THAT THE PENALTY IMPOSED IN VIOLATION OF PRO VISIONS OF 44AB IS NOT JUSTIFIED AS THERE IS NO VIOLATION ITSELF. 4. LEARNED D. R., ON THE OTHER HAND, HEAVILY SUPPOR TED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE FILED ITS RETURN OF INCOME ELECTRONICALLY ON 29/09/2011. THE COPY OF TAX AUDIT REPORT PLACED AT PAGES 5 TO 14 DATED 28 TH SEPTEMBER, 2011 WAS ALSO FILED ALONG WITH THE RETU RN OF INCOME. THE SAID AUDIT REPORT DID NOT CONTAIN ADEQ UATE INFORMATION AS THE STATUTORY AUDIT WAS NOT COMPLETED. THEREFORE, THE ASSESSING OFFICER IMPOSED PENALTY HOLDING THAT THE AUDIT REPORT DID N OT CONTAIN COMPLETE PARTICULARS. HOWEVER, IT IS AN UNDISPUTED FACT THA T THE ASSESSEE BEING A GOVERNMENT COMPANY, ITS ACCOUNTS ARE REQUIRED TO BE AUDITED BY CAG. THE APPOINTMENT OF STATUTORY AUDITORS BY CAG GENERALLY GETS DELAYED AND IT BECOMES BEYOND THE CONTROL OF THE ASSESSEE TO GET I TS ACCOUNTS AUDITED BY CAG AS THE ACTION OF GETTING ACCOUNTS AUDITED BY GO VERNMENT BODY I.E. CAG I.T.A. NO.84/LKW/2017 ASSESSMENT YEAR:2011-12 3 WITHIN PRESCRIBED TIME IS GENERALLY NOT IN THE CONT ROL OF THE ASSESSEE. EVEN THEN THE ASSESSEE MANAGED TO GET ITS ACCOUNTS AUDIT ED U/S 44AB AND FILED THE TAX AUDIT REPORT ALONG WITH THE RETURN OF INCOM E. THOUGH THE TAX AUDIT REPORT WAS NOT COMPLETE DUE TO NON COMPLETION OF ST ATUTORY AUDIT BUT FILING OF TAX AUDIT REPORT ALONG WITH THE NECESSARY COMMEN TS BY THE TAX AUDITORS ITSELF FULFILLS THE OBLIGATION OF THE ASSESSEE TO F ILE TAX AUDIT REPORT U/S 44AB OF THE ACT. WE FURTHER FIND THAT UNDER SIMILAR FACTS AND CIRCUMSTANCES THE ASSESSING OFFICER HAD IMPOSED SIMILAR PENALTY IN AS SESSMENT YEAR 2012-13 WHICH LEARNED CIT(A) HAD DELETED BY HOLDING AS UNDE R: 5 THE SUBMISSION MADE BY THE AR HAVE BEEN CAREFUL LY CONSIDERED. THE FACT OF THE MATTER IS THAT THE INCO ME TAX RETURN WAS E-FILED FOR THE ASSESSEE FOR AY 2012-13 ON 23.0 9.2012, AND AS PER COPY OF ITR-VI, THE DATE OF AUDIT REPORT IS 28.09.2012. THE E-RETURN CANNOT BE FILED AND IS NOT ACCEPTED UN LESS IT IS ACCOMPANIED WITH AUDIT REPORT. THUS THE AUDIT REPOR T AS REQUIRED UNDER THE INCOME TAX ACT, HAD BEEN FILED B EFORE 20.09.2012. HOWEVER, UNDER THE COMPANIES ACT, THE A SSESSEE IS ALSO REQUIRED TO GET THE ACCOUNTS AUDITED BY AUD ITORS APPOINTED BY CAG. AS PER THE SUBMISSION OF THE ASSE SSEE, THE DELAY IS ONLY WITH RESPECT TO THE AUDIT DONE BY AUD ITORS APPOINTED BY THE CAG. HOWEVER, THERE IS NO DEFAULT, AS FAR AS, THE PROVISIONS OF INCOME TAX ACT, ARE CONCERNED. FR OM THE FACTS, AND MATERIAL ON RECORD, THE CONTENTION OF TH E ASSESSEE IS ACCEPTABLE. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DELETE THE PENALTY CONFIRMED BY CIT(A). 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 18/01/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:18/01/2018 *SINGH I.T.A. NO.84/LKW/2017 ASSESSMENT YEAR:2011-12 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW