SHRI GYARSI LAL CHOUDHARY, SIKAR V. INCOME TAX OFFICER, WARD, NEEM KA THANA

ITA 991/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5984 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 28-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHELA JCIT DHK
• Keywords: Opportunity of being heard; Bonafide mistake
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH SMC, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 991/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14. SHRI GYARSI LAL CHOUDHARY, SURANI BAZAR SRIMADHOPUR, V&P MANGRA KI DHANI, SIKAR. CUKE VS. THE INCOME TAX OFFICER, WARD NEEMKATHANA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAZPC 4656 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SHRAWAN KUMAR GUPTA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.K. MAHELA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.09.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30/09/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 29.06.2018 OF LD. CIT (APPEALS)-3, JAIPUR ARISING FROM PENALTY OR DER PASSED UNDER SECTION 271B OF THE IT ACT FOR THE ASSESSMENT YEAR 2013-14. THE AS SESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1.1 THE IMPUGNED PENALTY ORDER U/S 271B DATED 29. 08.2016 IS BAD IN LAW AND ON FACTS OF THE CASE FOR WANT OF JURISDI CTION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUASHED. 2.1 RS. 1,50,000/-: THE LD. CIT(A) HAS GROSSLY ERRE D IN LAW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE PENAL TY OF RS. 1,50,000/- IMPOSED U/S 271B FOR NON FURNISHING REPO RT WITHIN TIME BY THE LD. AO. HENCE THE PENALTY SO IMPOSED BY THE LD. AO AND SUSTAINED BY THE LD. CIT (A) IS BEING TOTALLY C ONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD AND HENCE THE PENALTY MAY KINDLY BE DELETED IN FULL. 2 ITA NO. 991/JP/2018 SHRI GYARSI LAL CHOUDHARY, SIKAR. 2.2 THE LD. CIT (A) HAS GROSSLY ERRED IN LAW AS WEL L AS ON THE FACTS OF THE CASE IN PASSING THE EXPARTY ORDER WITHOUT PR OVIDING THE ADEQUATE AND REASONABLE OPPORTUNITY OF BEING HEARD. HENCE THE PENALTY SO SUSTAINED BY THE LD. CIT (A) IS BEING TO TALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS ON THE RECORD IN GROSS BREACH OF LAW AND HENCE THE PENALTY MAY KINDLY DELETED IN FULL. 3. THE APPELLANT PRAYS YOUR HONORS INDULGENCE TO AD D, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE THE DATE OF HEARING. 2. THE ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF M/S. BANWARI LAL CHOUDHARY. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF WHOLESAL E TRADING AND COMMISSION AGENT OF FOOD GRAINS, OIL SEEDS ETC. THE ASSESSEE FILED HIS RETURN OF INCOME ON 28.03.2014 DECLARING TOTAL INCOME OF RS. 4,95,780/-. THE ASSE SSMENT WAS COMPLETED UNDER SECTION 143(3) ON 19 TH FEBRUARY, 2016 AT A TOTAL INCOME OF RS. 5,28,700/- . THE AO INITIATED THE PENALTY PROCEEDINGS UNDER SECTION 271 B FOR THE DEFAULT IN FURNISHING AUDIT REPORT ALONG WITH THE RETURN OF INCOME. THE AO LEVIED THE PENALTY UNDER SECTION 271B OF RS. 1,50,000/- WHICH IS MINIMUM PEN ALTY LEVIABLE UNDER THIS SECTION. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (APPEALS) BUT COULD NOT SUCCEED. 3. BEFORE THE TRIBUNAL, THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS MORE THAN 78 YEARS OF AGE AND HAS BEEN REGULARLY ASSESSED TO INCOME- TAX FOR THE LAST SO MANY YEARS. EXCEPT FOR THE YEA R UNDER CONSIDERATION, THE ASSESSEE HAS NEVER DEFAULTED IN GETTING HIS ACCOUNT S AUDITED AND FILING THE AUDIT REPORT. HE HAS FURTHER CONTENDED THAT IN THE YEAR UNDER CONSIDERATION THE ASSESSEE WAS NOT MAINTAINING A GOOD HEALTH AS HE WAS SUFFERI NG FROM DISEASES AS WELL AS OLD AGE AND COULD NOT SUBMIT THE AUDIT REPORT DUE TO DE LAY IN GETTING THE ACCOUNTS 3 ITA NO. 991/JP/2018 SHRI GYARSI LAL CHOUDHARY, SIKAR. AUDITED AND CONSEQUENTLY DELAY IN FILING THE AUDIT REPORT AT THE TIME OF FILING THE BELATED RETURN. THEREFORE, IT WAS A BONAFIDE AND I NADVERTENT MISTAKE OF NOT FILING THE AUDIT REPORT. THE LD. A/R HAS REFERRED TO THE R ETURN OF INCOME FILED BY THE ASSESSEE AND SUBMITTED THAT THE ACCOUNTS WERE DULY AUDITED AND A REFERENCE OF AUDIT REPORT DATED 28 TH MARCH, 2014 IS MADE IN THE RETURN OF INCOME. THER EFORE, ONLY DUE TO A BONAFIDE MISTAKE THE SAME COULD NOT B E FILED ALONG WITH THE RETURN OF INCOME. IN SUPPORT OF HIS CONTENTION, HE HAS RELIE D UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF HINDUSTAN STEELS VS. STATE OF ORISSA, 83 ITR 26 (SC) AS WELL AS IN CASE OF CIT VS. CIT VS. MATHANA MODEL CO -OPERATIVE CREDIT & SERVICE SOCIETY LTD., 299 ITR 70. THUS THE LD. A/R HAS CON TENDED THAT ONCE THE ASSESSEE HAS EXPLAINED THE CAUSE OF DEFAULT AND THE SAME IS BONAFIDE AND REASONABLE, THEN IN VIEW OF THE PROVISIONS OF SECTION 273B, NO PENALTY IS REQUIRED TO BE LEVIED. 4. ON THE OTHER HAND, THE LD. D/R HAS RELIED UPON T HE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE PROVISIONS OF SECTION 44AB ARE STATUTORY AND COMPLIANCE OF SUCH PROVISION IS MANDATORY. THE REA SONS EXPLAINED BY THE ASSESSEE FOR FAILURE OF SUBMITTING THE AUDIT REPORT IS NOT S UPPORTED BY ANY DOCUMENTARY EVIDENCE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE EXPLAINED BEFORE THE AO IN TH E PENALTY PROCEEDINGS THAT HE IS AN OLD PERSON AND WAS SUFFERING FROM ILLNESS, THERE FORE, HE COULD NOT PREPARE THE ACCOUNT IN TIME AND GOT IT AUDITED WHICH ARE REPROD UCED IN PARA 3 OF THE PENALTY ORDER AS UNDER :- 3. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSE SSEE SUBMITTED HIS REPLY ON 24.06.2016 THROUGH HIS A/R SHRI MUKESH GUPTA, 4 ITA NO. 991/JP/2018 SHRI GYARSI LAL CHOUDHARY, SIKAR. ADVOCATE THAT THE ASSESSEE IS A SENIOR CITIZEN OF T HE 78 YEARS OF AGE. IN THE YEAR UNDER CONSIDERATION, THE ASSESSEE WAS ILL AND SUFFERING FROM SOME DISEASE BEING IN OLD AGE. HENCE , HE COULD NOT PREPARE THE ACCOUNTS IN TIME AND PROVIDE TO THE CHARTERED ACCOUNTANT IN TIME AND NOT PROVIDE TO THE CHARTERED ACCOUNTANT IN TIME WHEN HE GOT RECOVER HE GET HIS ACCOUNTS AUD ITED IN THE MARCH OF 2014 AND FILED THE SAME TO THE DEPARTMENT. ONLY DUE TO THIS REASON HE COULD NOT SUBMIT THE SAME AND IT WAS BEYOND CONTROL TO THE ASSESSEE. THE FACT OF OLD AGE OF THE ASSESSEE BEING MORE 78 Y EARS OF AGE AT THAT POINT OF TIME IS NOT IN DISPUTE AND FURTHER WHEN THE ASSESSEE HAS BEEN REGULARLY FILING THE RETURN OF INCOME FOR SO MANY YEARS WITHOUT ANY DEFAULT, TH EN THE REASONS EXPLAINED BY THE ASSESSEE FOR DELAY IN GETTING THE ACCOUNTS AUDITED ARE REASONABLE AND BONAFIDE AND, THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 273 B, THE PENALTY LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT (A) IS DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30/09/20 19. SD/- ( FOT; IKY JKWO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 30/09/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI GYARSI LAL CHOUDHARY, SRIMAD HOPUR. 2. THE RESPONDENT THE ITO WARD NEEM KA THANA. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 991/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 991/JP/2018 SHRI GYARSI LAL CHOUDHARY, SIKAR.