Smt. Prittiben C.Chauhan, Dadra & Nagar Haveli V. The ACIT.,Cent,Circle-2, Surat

ITA 842/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67596 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-10-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 22-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEM BER PRITIBEN C. CHAUHAN AVDHESH MANSION, PLOT NO. 262/4/26-A P.W.D. ROAD, SILVASA, DAMAN & NAGAR HAVELI PAN: ABNPC6043R (APPELLANT) VS DCIT, CENTRAL CIRLCE-2 SURAT (RESPONDENT) REVENUE BY: SRI P.L. KUREEL, SR.D.R. ASSESSEE BY: SRI HARDIK VORA, A.R. DATE OF HEARING : 20-08-2013 DATE OF PRONOUNCEMENT : 23-08-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-II AHMEDABAD DATED 30-01-2013. ITA NO. 842/AHD/2013 ASSESSMENT YEAR 2008-09 I.T.A NO. 842/AHD/2013 A.Y. 2008-09 PAGE NO PRITIBEN C. CHAUHAN VS. DCIT 2 2. ASSESSEE IS AGGRIEVED BY THE ORDER OF LD. CIT(A) CONFIRMING THE PENALTY OF RS. 1 LAC U/S 271B OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PROPRIETOR OF TWO BUSINESSES ONE TRADING IN PETROLEUM PRODUCTS IN THE NAME OF M/S. SAINATH PETROLEUM AND THE OTHER OF MANUFACTURING IN THE NAM E OF M/S. SACHIN ENTERPRISES. THE ASSESSEE FAILED TO GET BOOKS OF AC COUNTS OF M/S. SAINATH PETROLEUM AUDITED BEFORE THE PRESCRIBED DATE DUE. T HE ASSESSING OFFICER LEVIED THE PENALTY STATING THE FALLOWING REASONS: 'THE PLEA THAT IN THE CASE OF M/S. SAINATH PETROLEU M (FUEL DEALERSHIP PROPRIETARY CONCERN) THERE WAS A HARD DISK PROBLEM IN THE COMPUTER AND BOOKS HAD TO BE REWRITTEN AND THUS, THE ASSESSE E COULD NOT GET ACCOUNTS AUDITED AND FAILED TO FILE HER RETURN OF I NCOME, IS AN ASSERTION WITHOUT ANY EVIDENCE OR SUPPORTIVE PROOF. THE ASSESSEE HAS NOT FURNISHED ANY DETAILS AS TO WHEN THE SO CALLED CRASH OF THE COMPUTER OCCURRED, WHETHER THE COMPUTER WAS THE SER VER OR ONLY AN ENTRY TERMINAL, WHEN AND WHERE THE DATE WERE RESTOR ED, HOW THE BOOKS WERE RECAST ETC. IN THE ABSENCE OF ANY EVIDENCE, TH E CLAIM OF THE ASSESSEE HAS THE ELEMENTS OF A CONVENIENT EXCUSE RA THER THAN TRUTH. HENCE, THE UNVERIFIABLE AND UNSUPPORTED ASSERTIONS ARE REJECTED AND IT IS TAKEN THAT THE ASSESSEE HAS FAILED TO PROVE THAT THERE WAS REASONABLE CAUSE FOR THE IMPUGNED FAILURE. THUS, TH E IMMUNITY OF 273B IS NOT AVAILABLE TO THE ASSESSEE UPON UNPROVEN CLAIMS.' THIS ACTION OF ASSESSING OFFICER WAS CONFIRMED BY L D. CIT(A). 5. BEFORE US LEARNED COUNSEL OF THE ASSESSEE SUBMIT TED THOUGH THE ASSESSEE FAILED TO GET BOOKS OF ACCOUNTS M/S SAINAT H PETROLEUM AUDITED BEFORE THE PRESCRIBED DATE BUT WAS ABLE TO GET THEM AUDITED ON 02/07/2009 BEFORE FILING OF INCOME TAX RETURN AND THE SAME WAS FILED ALONG WITH THE RETURN OF INCOME FILED IN TIME ON 17-07-2009, THERE FORE NO PENALTY IS LEVIABLE I.T.A NO. 842/AHD/2013 A.Y. 2008-09 PAGE NO PRITIBEN C. CHAUHAN VS. DCIT 3 IN VIEW OF THE DECISIONS OF JASBIR SINGH VS. COMMI SSIONER OF INCOME-TAX PATIALA REPORTED IN 20 TAXMANN.COM 202 (PUNJ & HAR ), DCIT VS. MACHINO TECHNO SALES (P.) LTD. 62 ITD 225 (CAL.) (TM) & NUL ON ELECTRONICS LTD VS. ITO 15 SOT 89 (DEL) (URO) WHEREIN EVEN WHEN AUDIT R EPORT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS, THE PENALTY IMPO SED U/S 271B OF THE ACT WAS DELETED. LD. DR RELIED ON THE ORDER OF LOWER A UTHORITIES. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT THOUGH IN THIS CASE ASSESSEE FAILED TO GET ITS ACCO UNT AUDITED IN RESPECT OF M/S SHAINATH PETROLEUM IN TIME BUT WAS ABLE TO GET THEM AUDITED ON 02-07- 2009 AND RETURN WAS FILED BY HIM ON 17-07-2009 ALON G WITH THIS AUDIT REPORT WHICH WAS IN TIME. ON THESE UNDISPUTED FACTS PENA LTY U/S 271B IS NOT LEVIABLE IN VIEW OF THE CASE LAWS RELIED BY ASSESSE E. IN THE CASE OF NULON ELECTRONICS LTD VS. ITO 15 SOT 89 (DEL) IT WAS HELD THAT SINCE ASSESSEE HAS FILED DULY SINGED COPIES OF THE TAX AUDIT REPORT DU RING THE COURSE OF ASSESSMENT PROCEEDINGS LEVY OF PENALTY U/S 271B WAS NOT JUSTIFIED WHILE IN THE CASE OF ASSESSEE, ASSESSEE FILED THE RETURN ALO NG WITH AUDIT REPORT, THEREFORE THE PENALTY OF RS. 1 LAC IMPOSED BY ASSES SING OFFICER AND SUSTAINED BY LD. CIT(A) IS HEREBY DELETED. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (T.R. MEENA) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 23/08/2013 I.T.A NO. 842/AHD/2013 A.Y. 2008-09 PAGE NO PRITIBEN C. CHAUHAN VS. DCIT 4 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,