Appeal Details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 5384 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 2 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-03-2016
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
B
Assessment Year
2008-2009
Appeal Filed On
18-12-2013
Judgement Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 993/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 CHARAT LAL MEENA, M/S SHIVAM INDIAN OIL STATION, P.O. KHANDAR, DISTT.- SAWAI MADHOPUR, (RAJ.) CUKE VS. INCOME TAX OFFICER, WARD-1, SAWAI MADHOPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ACCPM 1380 M VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI WRITTEN SUBMISSION JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 29/02/2016 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 04/03/2016 VKNS'K @ ORDER PER: T.R. MEENA, AM THIS IS AN APPEAL FILED BY THE APPELLANT AGAINST TH E ORDER DATED 21/10/2013 PASSED BY THE LEARNED CIT(A), KOTA FOR A .Y. 2008-09. THE EFFECTIVE GROUNDS OF APPEAL RAISED BY THE APPELLANT ARE AS UNDER:- 1 THAT THE LD A.O. GROSSLY ERRED IN LEAVY OF PENALT Y U/S 271B OF I.T. ACT, 1961, FURTHER THE LD CIT(A) ALSO ER RED ITA 993/JP/2013_ CHARAT LAL MEENA VS ITO 2 ON LAW AND FACTS IN SUSTAINING THE SAID ADDITION OF PENALTY RS. 1,00,000/- AND THEREBY DISMISSED THE APPEAL OF THE ASSESSEE. 2. THAT THE LD A.O. GROSSLY ERRED IN IMPOSING THE P ENALTY IN VIOLATION OF SEC. 274. THE LD A.O. IMPOSED PENALT Y U/S 271B WITHOUT APPROVAL OF JOINT COMMISSIONER. 2. THE SOLE GROUND OF THE APPEAL IS AGAINST CONFIRMI NG THE PENALTY U/S 271B OF THE INCOME TAX ACT, 1961 (IN SHORT THE A CT) AT RS. ONE LAC. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FILED RETURN FOR A.Y. 2008-09 ON 17/2/2009, WHICH WAS BELATED. ON VERIFICAT ION OF RETURN, HE FOUND THAT IN F.Y. 2007-08, TOTAL RECEIPTS/SALES WER E MORE THAN RS. 40 LACS (RS. 2,09,07,387/-). AS PER SECTION 44AB OF TH E ACT, THE ASSESSEE IS REQUIRED TO GET ACCOUNTS AUDITED AND IS TO BE SUBMI TTED ON OR BEFORE 30/09/2008 BUT THE ASSESSEE FAILED TO COMPLY THE PR OVISIONS OF SECTION 44AB OF THE ACT. THE LD ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(B) OF THE ACT. THE LD ASSESSING OFFICER ISSU ED NOTICE U/S 271B OF THE ACT ON 09/3/2009 AND CASE WAS FIXED FOR 20/3/ 2009. THE ASSESSEE ADMITTED BEFORE THE ASSESSING OFFICER THAT RETURN FOR A.Y. 2008-09 FILED LATE AND IT WAS CLAIMED BY HIM THAT BE ING PROCEEDING PENDING WITH ANTI CORRUPTION BUREAU WITH DIRECTOR GE NERAL OF POLICE, THERE IS NO NEED TO REPLY AGAINST THE SHOW CAUSE PEN ALTY AND ALSO IS NOT REQUIRED TO APPEAR BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ITA 993/JP/2013_ CHARAT LAL MEENA VS ITO 3 CONCLUDED THAT THERE IS NO RELEVANCY WITH THE ANTI C ORRUPTION PROCEEDING WITH AUDIT REPORT, AGAIN ON 18/6/2009, 06/08/2009 DA TES WERE GIVEN BY THE ASSESSING OFFICER TO FILE THE REPLY AGAINST THE PENALTY PROCEEDING. ON 17/8/2009, THE ASSESSEE REQUESTED TO ADJOURN THE PROCEEDING. ON 24/8/2009, THE ASSESSEE INFORMED THE ASSESSING OFFI CER THAT HE HAS SUBMITTED AUDIT REPORT IN TIME IN OFFICE BUT NO COP Y OF THE AUDIT REPORT HAS NOT BEEN FILED BY THE ASSESSEE AND ALSO THE ASS ESSEE DID NOT HAVE ANY PROOF THAT HE HAS FILED THE AUDIT REPORT IN OFF ICE OF THE ASSESSING OFFICER. WHEN NUMBER OF OPPORTUNITIES HAS BEEN PROV IDED TO THE ASSESSEE, THE ASSESSING OFFICER DECIDED TO IMPOSE P ENALTY U/S 271B OF THE ACT. THE LD ASSESSING OFFICER HELD THAT HE GAVE SHOW CAUSE NOTICE TO THE ASSESSING OFFICER ON 09/3/2009 AND CASE WAS FIXE D FOR 20/3/2009 BUT THE ASSESSEE FILED REPLY ON 23/3/2009 WHEREIN HE HAD ADMITTED THAT HE FILED RETURN LATE AND NO EVIDENCE WAS FILED THAT HE HAD FILED AUDIT REPORT ON OR BEFORE 30/09/2008. HE CONCLUDED THAT T HE ASSESSEE HAD NOT GOT AND SUBMITTED AUDIT U/S 44AB OF THE ACT IN TIME. ON 07/9/2009, THE MANAGER OF THE ASSESSEE ASKED TO GIVE MORE TIME TO COMPLY THE REQUIREMENT OF THE ASSESSING OFFICER FOR 15 DAYS. W HEN ADJOURNMENT WAS NOT GRANTED TO THE MANAGER SHRI BHUPENDRA KUMAR SHARMA WITHIN A SHORT PERIOD PRODUCED COPY OF AUDIT REPORT, WHICH WAS CERTIFIED BY THE ITA 993/JP/2013_ CHARAT LAL MEENA VS ITO 4 MANAGER HIMSELF. THIS AUDIT REPORT HAS NOT BEEN CER TIFIED BY THE ASSESSEE. HOWEVER, ASSESSEE CLAIMED THAT THIS AUDIT REPORT HAD BEEN CERTIFIED BY HIM. THE ASSESSEE FAILED TO COMPLY THE PROVISIONS OF SECTION 44AB OF THE ACT WHEN NUMBER OF OPPORTUNITIES HAS BEE N GIVEN BY THE ASSESSING OFFICER. HE IMPOSED PENALTY U/S 271B AT RS. 1 LAC. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD DISMISSED THE ASSESSEES APPEAL BY OBSERVING THAT THE ASSESSE E DID NOT HAVE ANY EVIDENCE THAT HE HAD FILED AUDIT REPORT ALONGWITH RE PLY DATED 23/3/2009. THE LD ASSESSING OFFICER ASKED TO SUPPLY COPY OF THE AUDIT REPORT ON 07/9/2009, THE ASSESSEE SOUGHT 15 DAYS TI ME FOR IT. A PHOTO COPY WAS, HOWEVER, PRODUCED BEFORE THE ASSESSING OFFI CER. PRIOR TO THIS, THERE IS NO EVIDENCE OF FILING AUDIT REPORT. NO AUD IT REPORT WAS FILED WITH THE RETURN OF INCOME ON 17/2/2009. AS PER SECTION 4 4AB, IT IS MANDATORY ON THE PART OF THE ASSESSEE TO NOT ONLY G ET THE ACCOUNT AUDITED BUT ALSO FURNISHED THE SAME BEFORE SPECIFIE D DATE. THE ASSESSEE IN HIS REPLY BEFORE HIM STATED THAT A COPY OF AUDIT REPORT DATED 14/7/2008 WAS ENCLOSED, HOWEVER, NO SUCH REPORT WAS EN CLOSED. THE ASSESSEE MAINLY RELIED ON THE PLEA THAT THE DUTY TO FILE RETURN AND AUDIT REPORT IS ON AUTHORIZED REPRESENTATIVE. THE LAW DOES NOT CAST SUCH DUTY ITA 993/JP/2013_ CHARAT LAL MEENA VS ITO 5 ON AR. THE RESPONSIBILITY CLEARLY WAS ON THE ASSESSEE HIMSELF. THE ASSESSEE HIMSELF ADMITTED THAT HE FAILED TO FILE AU DIT REPORT DUE TO VARIOUS REASONS, ACCORDINGLY HE HELD PENALTY JUSTIF IED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. NO ONE A PPEARED ON BEHALF OF THE ASSESSEE BUT THE ASSESSEE FILED A DET AILED WRITTEN SUBMISSIONS. IN THE WRITTEN SUBMISSIONS, IT HAS BEEN STATED THAT THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM RUNNIN G OF AN INDIAN OIL OUTLET (PETROL PUMP) IN THE NAME OF SHIV INDIAN OIL , BAR ROAD, KHANDAR, DISTRICT- SAWAI MADHOPUR. THE TURNOVER OF THE ASSESS EE WAS EXCEEDING THE LIMIT OF AUDIT I.E. RS. 40 LACS AND AS PER LAW H E HAD TO FILE AUDIT REPORT BY 30/09/2008. THE ASSESSEE GOT THE AUDIT DON E AND GAVE THE SAME TO HIS A.R./CHARTERED ACCOUNTANT FOR FILING ON WARDS TO THE INCOME TAX DEPARTMENT AND HE ALSO CASTED UPON THE DUTY OF F ILING THE RETURN TO THE SAME CHARTERED ACCOUNTANT. THE ASSESSEE IS LIVI NG IN A VILLAGE. HE IS NOT AWARE ABOUT THE TECHNICAL DATES FOR FILING ALL T HE RETURNS, AUDIT REPORT AND ALIKE EVERY YEAR HE WAS DEPENDING UPON HI S AUTHORIZED PERSON, BUT THE AUTHORIZED PERSON FAILED TO FILE TH E RETURN AS WELL AS AUDIT REPORT IN TIME AND IN BETWEEN THE ASSESSEE CAM E IN CONTACT WITH THE CONCERNED ITO AND INTENDED TO FILE THE AUDIT RE PORT SO THAT THE PENALTY CAN BE SAVED. THE ASSESSEE WAS FORCED TO PAY ILLEGAL ITA 993/JP/2013_ CHARAT LAL MEENA VS ITO 6 GRATIFICATION AND IN THIS JUGGLERY, THE AUDIT REPOR T COULD NOT BE FILED. THE ASSESSEE INFORMED TO THE ANTI CORRUPTION DEPARTMENT AND KEEPING IN MIND THAT THE WHOLE DEPARTMENT WAS AGAINST THE ASSES SEE. THESE THINGS HAD BEEN SUBMITTED BEFORE THE LD CIT(A) THAT SHRI MANOJ JAIN, CHARTERED ACCOUNTANT HAD GIVEN THE STATEMENT SINCE HE WAS ALSO INVOLVED FOR EXTRA CONSIDERATION, WHICH WAS NOT ACCEP TABLE TO THE ASSESSEE. IN THE PROCESS OF ANTI CORRUPTION, CBI AN D ALL THESE THINGS, THE WHOLE THING TOOK TIME AND THE LD ASSESSING OFFICER T OOK THE BENEFIT OF THESE THINGS AND IMPOSED PENALTY. IN PAST, THE ASSE SSEE HAD REGULARLY BEEN FILING THE RETURNS AS WELL AS AUDIT REPORTS. HE IS VERY COOPERATIVE WITH THE DEPARTMENT FOR FILING THE RETURN IN TIME. TH E AUDIT WAS DONE BY M/S VIMAL GOEL & ASSOCIATES ON 14/7/2008, THEREFORE IT IS WRONG TO STATE THAT THE AUDIT WAS NOT COMPLETED IN TIME. THE F ILING OF AUDIT REPORT AS WELL AS RETURN WAS THE DUTY OF AUTHORIZED PERSON, HENCE THERE IS NO MISTAKE ON THE PART OF THE ASSESSEE. THEREFORE, HE PRAYED TO DELETE THE PENALTY CONFIRMED BY THE LD CIT(A). 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LD CIT(A) AND FURTHER ARGUED THAT AS PER SECTIO N 44AB OF THE ACT, THE AUDIT REPORT IS TO BE FILED ON OR BEFORE 30/09/ 2008. THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT SUPPORTED WITH ANY EVID ENCE. HE FURTHER ITA 993/JP/2013_ CHARAT LAL MEENA VS ITO 7 RELIED ON THE DECISION IN THE CASE OF K. RAVINDRANA THAN NAIR VS DCIT (2009) 319 ITR 108 (KER) WHEREIN IT HAS BEEN HELD TH AT WHEN THE APPELLANT DID NOT ADDUCE ANY EVIDENCE TO JUSTIFY TH E DELAY IN FILING OF THE AUDIT REPORT AS REQUIRED U/S 44AB BEFORE THE TRIBUNA L, THERE WAS NO GROUND TO INTERFERE WITH MINIMUM PENALTY IMPOSED FOR , ADMITTED DELAY OF FILING AUDIT REPORT. HE FURTHER RELIED ON THE DE CISION IN THE CASE OF RIVER VIEW BAR & SILVER RESTAURANT VS. CIT (CENTRAL), KOCHI (2011) 15 TAXMANN.COM 84 (KERALA) WHEREIN IT WAS CLAIMED THAT A UDIT REPORT GOT PREPARED BUT NOT SUBMITTED BY THE AUTHORIZED REPRES ENTATIVE BUT THE ASSESSEE HAD NOT PRODUCED ANY EVIDENCE WHATSOEVER AS PROOF OF ITS AVERMENT, SAME COULD NOT BE ACCEPTED ON FACE VALUE. THEREFORE, HE PRAYED TO CONFIRM THE ORDER OF THE LD ASSESSING OFF ICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THERE IS NO EVIDENCE WITH THE ASSESSEE TO PROVE THAT HE GOT ACCOUNT AUDITED O N 14/7/2008 BY M/S VIMAL GEOL & ASSOCIATES. NOW LAW HAS BEEN AMENDED AND NOT ONLY THE ASSESSEE GOT THE ACCOUNT AUDITED BUT AUDIT REPORT I S TO BE SUBMITTED BEFORE DUE DATE IN THE OFFICE OF THE ASSESSING OFFI CER. THE ASSESSEES PLEA IS THAT HE HAS TOTALLY DEPENDENT ON AR FOR SUB MITTING THE RETURN AS WELL AS AUDIT REPORT BUT THIS AVERMENT ALSO HAS NOT BEEN PROVED BY HIM ITA 993/JP/2013_ CHARAT LAL MEENA VS ITO 8 WITH COGENT EVIDENCE. THEREFORE, WE FIND THAT THE LD C IT(A) WAS JUSTIFIED IN CONFIRMING THE PENALTY U/S 271(B) OF T HE ACT. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD CIT(A). 7. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 04/03/2016. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 04 TH MARCH, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI CHARAT LAL MEENA, SAWAI MADHOPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-1, SAWAI MADHOPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 993/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR
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