RAJENDRA KUMAR SHAH, Jaipur V. ITO, Jaipur

ITA 944/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4834 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 28-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI JCIT DHK
• Keywords: Bonafide mistake

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 944/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 RAJENDRA KUMAR SHAH, 6/173, SFS, AGRAWAL FARM, MANSAROVAR, JAIPUR-302020 CUKE VS. ITO, WARD 2(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABUPS 0127 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIVEK BHARGAVA (CA). JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI (JCIT). LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/12/2016 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 27/12/2016 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 03/08/2016 PASSED BY THE LD CIT(A)-I, JAIPUR FOR TH E A.Y. 2013-14. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AGAINST SUSTA INING THE PENALTY U/S 271B OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERR ED AS THE ACT) LEVIED FOR RS. 82,360/- FOR NOT FILING THE AUDIT REPORT U/ S 44AB OF THE ACT. ITA 944/JP/2016_ RAJENDRA KUMAR SHAH VS ITO 2 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE E-FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 6,11 ,350/- ON 28/09/2013 VIDE ACKNOWLEDGEMENT NO. 795840521280913 AND THE SAM E WAS PROCESSED U/S 143(1) OF THE ACT ON 06/01/2014. THE G ROSS RECEIPT SHOWN BY THE ASSESSEE WERE RS. 1,64,72,636/-. AS PER PROV ISIONS OF LAW, THE ASSESSEE WAS TO KEEP ITS ACCOUNT AUDITED AND UPLOAD THE SAME ELECTRONICALLY ALONGWITH RETURN OF INCOME. HOWEVER, T HE ASSESSEE HAS NOT UPLOADED THE AUDIT REPORT ALONGWITH RETURN OF INCOME . A SHOW CAUSE WAS ISSUED TO THE ASSESSEE IN THIS REGARD AND THE ASSES SING OFFICER LEVIED THE PENALTY @ % OF THE GROSS TURNOVER U/S 271B OF THE A CT. 3. IN FIRST APPEAL, THE LD. CIT(A) HAD SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THIS WAS THE FIRST YEAR IN WHICH THE AUDITED ACCOUNTS WERE ALSO TO BE UPLOADED ALONGWITH THE RETUR N OF INCOME. THE PROVISIONS IN RULE 12(2) OF THE INCOME TAX RULES, 19 62 (IN SHORT THE RULES) WERE EFFECTIVE FROM 01/4/2013. THE AUDITOR OF THE ASSESSEE MR. ADITYA KUMAR RAWAT (CA) COMPLETED THE AUDIT ON 24/09 /2013 AND FILED THE RETURN ON 28/09/2013. THE DATE OF THE AUDIT REPO RT WAS ALSO FILLED IN ITA 944/JP/2016_ RAJENDRA KUMAR SHAH VS ITO 3 THE ITR-4 FORM. HOWEVER, THE AUDITOR SKIPPED THE ELE CTRONIC FILING OF THE AUDIT REPORT. SINCE THIS WAS THE FIRST YEAR OF THE P ROVISIONS AND THE AUDITOR HAS HIMSELF ACCEPTED THE MISTAKE ON HIS PAR T, THEREFORE, THE ASSESSEE SHOULD NOT HAVE BEEN PENALIZED BY LEVYING THE PENALTY U/S 271B OF THE ACT WHEN THE ACCOUNTS WERE AUDITED WELL IN TIME, BUT DUE TO HUMAN BONAFIDE MISTAKE, THE UPLOADING OF AUDIT REPO RT SKIPPED THE ATTENTION OF AUDITOR. IT WAS ALSO PLEADED THAT THE A SSESSEE WAS GETTING HIS ACCOUNTS AUDITED REGULARLY SINCE MANY YEARS AND THE AUDIT FOR THE PRESENT FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR 2013-14 WAS COMPLETED ON 24/9/2013 THAT WAS WELL IN TIME. THE LD A R OF THE ASSESSEE ALSO RELIED ON THE VARIOUS CASE LAWS FOR THE REASON THAT THE MISTAKE WAS IN BONAFIDE AND IT WAS NOT A DISHONEST EFFORT ON PA RT OF ASSESSEE AS HE WAS GETTING HIS AUDIT COMPLETED REGULARLY IN TIME IN THE LAST MANY YEARS, THEREFORE, PENALTY SHOULD NOT HAVE BEEN LEVIED. 5. ON THE CONTRARY, THE LD DR HAS RELIED ON THE ORD ERS OF THE AUTHORITIES BELOW. SHE ALSO PLEADED THAT THE LEVY OF PENALTY SHOULD BE SUSTAINED. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL AVAILABLE ON THE RECORD. RULE 12(2) OF THE RULES WAS MADE EFFE CTIVE FROM ITA 944/JP/2016_ RAJENDRA KUMAR SHAH VS ITO 4 01/04/2013 WHEREIN THE ASSESSEE WAS REQUIRED TO FURNI SH THE REPORT OF THE AUDIT U/S 44AB OF THE ACT ELECTRONICALLY. HOWEVE R, THE AUDITOR OF THE ASSESSEE COULD NOT DO IT IN TIME. THIS IS WELL ESTABL ISHED FACT THAT THE ASSESSEE HAS GOT HIS ACCOUNTS AUDITED AS PER PROVIS IONS OF SECTION 44AB OF THE ACT IN TIME. HOWEVER, THE NEWLY INSERTED RULE WHEREIN THE AUDIT REPORT WAS TO BE ELECTRONICALLY SUBMITTED ALONGWITH T HE RETURN OF INCOME, SKIPPED THE ATTENTION OF THE AUDITOR, WHICH HE HAS A DMITTED BY FILING A LETTER. ON THE ENQUIRY FROM THE BENCH WITH REGARD TO FILING ELECTRONICALLY AUDIT REPORT IN THE SUBSEQUENT YEARS, IT WAS STATED THAT THE ASSESSEE IS REGULARLY SUBMITTING THE SAME AND THERE WAS NO FAULT IN ANY SUBSEQUENT YEAR. IT IS ALSO OBSERVED THAT THE ASSESSEE WAS GETT ING HIS ACCOUNTS AUDITED WELL IN TIME REGULARLY SINCE LAST THREE YEAR S. THE AUDIT FOR THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR UNDER CO NSIDERATION WAS COMPLETED ON 24/09/2013 IN TIME AND THE ASSESSEE SU BMITTED ITS RETURN ON 28/09/2013. THEREFORE, IN MY CONSIDERED VIEW, THE DEFAULT ON THE PART OF THE ASSESSEE WAS A BONAFIDE HUMAN MISTAKE. THERE WA S NO DISHONEST ATTEMPT TO BREAK THE LAW. CONSIDERING THE VARIOUS CA SE LAWS AS MENTIONED BELOW, I DIRECT TO DELETE THE PENALTY LEVI ED U/S 271B OF THE ACT. (I) CHANDRA PAL BAGGA VS. ITAT 261 ITR 67 (RAJ). ITA 944/JP/2016_ RAJENDRA KUMAR SHAH VS ITO 5 (II) RAJ STATE ELECTRICITY BOARD VS. ITAT (2003) 130 TAXMAN 840 (RAJ). (III) CIT VS UP RAJYA SAHKARI EVAM BHOOMI VIKAS BANK LTD. (2013) 35 TAXMANN.COM 471 (ALL). (IV) LAKSHMI CARD CLOTHING MANUFACTURING CO. P. LTD . VS. DCIT (2013) 35 TAXMANN.COM 235 (MAD). (V) APL (INDIA) PVT. LTD. VS JCIT (2014) 41 TAXMANN .COM 85 (MUM TRIB). (VI) ACIT VS DR. K. SATISH SHETTY (2010) 188 TAXMAN 32 (KAR). (VII) PAHARPUR INDUSTRIES LTD. VS ITO (2010) 7 TAXMA NN.COM 70 (DEL ITAT). 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/12/2016. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27 TH DECEMBER, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAJENDRA KUMAR SHAH, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 2(4), JAIPUR. 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. 944/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR