Mayfair Builders & Developers, Pune V. DCIT, Cir.-2, Pune

MA 43/PUN/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6475 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 25-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T CHACKO MANI
• Assessee Lawyers: K SRINIVASAN
• Keywords: Reasonable cause
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER M.A NO 43/PN/2011 (IN ITA NO. 1012/PN/09 (ASSTT. YEARS: 2006-07) MAYFAIR BUILDERS & DEVELOPERS, .. APP LICANT 1027 NEW NANA PETH, PUNE PAN - AACFM1312R VS. DY. COMMISSIONER OF INCOME-TAX, .. RESPONDENT CIR. 2 PUNE APPLICANT BY: SHRI K SRINIVAS AN RESPONDENT BY: SHRI T CHACKO MANI ORDER PER G.S. PANNU, AM THIS MISCELLANEOUS APPLICATION HAS BEEN MOVED BY T HE PETITIONER IN RESPECT TO ORDER OF THE TRIBUNAL IN ITA NO 1012/PN/ 2009 PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2. BRIEFLY PUT THE BACKGROUND IS THAT FOUR APPEALS OF THE ASSESSMENT YEARS 2003-04, 2004-05, 2005-06, AND 2006-07 PERTAINING T O THE IMPOSITION OF PENALTY UNDER SECTION 271B OF THE INCOME-TAX ACT (IN SORT THE ACT) WERE DISPOSED OFF THE TRIBUNAL VIDE A CONSOLIDATED ORDER DATED 30.11.2010 . THE PENALTIES IMPOSED FOR ASSESSMENT YEARS 2004-05 AND 2005-06 WERE DELETED, WHEREAS FOR ASSESSMENT YEARS 2003-04 AND 2006-07, PENALTIES WERE UPHELD BY THE TRIBUNAL. 3. BY WAY OF THE PRESENT MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS TO POINT OUT THAT IN RELATION TO THE ORDER FOR THE ASS ESSMENT YEAR 2006-07 A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT HAS OCCURRED IN PARA 9 OF THE IMPUGNED ORDER, WHEREBY T HE DUE DATE OF FILING OF THE RETURN FOR THE ASSESSMENT YEAR 2006-07 HAS BEEN WRO NGLY NOTED AS 31.10.2007, WHEREAS THE CORRECT DATE IS 31.10.2006. 2 4. THE AFORESAID MISTAKE POINTED OUT BY THE PETITIO NER IS WELL-FOUNDED AND, THEREFORE, IN FIRST SENTENCE OF PARA 9 OF THE ORDER DATED 30.11.2010 (SUPRA), THE DATE OF 31.10.2007 BE READ AND UNDERSTOOD AS 31.10.2006 . THE ORDER OF THE TRIBUNAL STANDS MODIFIED TO THAT EXTENT. 5. FURTHER-MORE, ON THE BASIS OF THE AFORESAID, IT IS SOUGHT TO BE POINTED OUT THAT THE PROPOSITION ON THE BASIS OF WHICH THE PENA LTY FOR ASSESSMENT YEARS 2004- 05 AND 2005-06 HAS BEEN DELETED, THE SAME WOULD APP LY TO ASSESSMENT YEAR 2006-07 ALSO AFTER CORRECTION OF SUCH MISTAKE AND, THEREFORE, FOR THE ASSESSMENT YEAR 2006-07 ALSO, THE ORDER OF THE TRIBUNAL BE MOD IFIED BY DELETING THE PENALTY LEVIED UNDER SECTION 271B OF THE ACT. FOR THE ASSES SMENT YEARS 2004-05 AND 2005-06, PENALTIES WERE DELETED ON THE GROUND THAT FAILURE ON THE PART OF THE ASSESSEE TO GET ACCOUNTS AUDITED WITHIN THE TIME SP ECIFIED WAS ON ACCOUNT OF NON-AUDIT OF THE ACCOUNT BOOKS FOR THE PRECEDING YE ARS. FOR THE ASSESSMENT YEAR 2006-07, IT IS SOUGHT TO BE POINTED OUT THAT AUDIT FOR THE PRECEDING ASSESSMENT YEAR WAS COMPLETED BY 7.3.2007 AND THE DUE DATE FOR FILING OF RETURN FOR ASSESSMENT YEAR 2006-07 WAS 31.10.2006 AND, THEREFO RE, THE DEFAULT OF NON- FURNISHING OF THE REPORT UNDER SECTION 44AB OF THE ACT WAS FOR A REASONABLE CAUSE. THE RETURN OF INCOME FOR ASSESSMENT YEAR 200 6-07 WAS ACTUALLY FILED BY THE ASSESSEE ON 27.3.2008. THE CLAIM OF THE ASSESSE E IS THAT SITUATION IN ASSESSMENT YEAR 2006-07 IS THUS PARI MATERIA WITH T HAT PREVAILING IN ASSESSMENT YEARS 2004-05 AND 2005-06 WHERE PENALTIES HAVE BEEN DELETED. 6. WE HAVE CONSIDERED THE AFORESAID ASPECT CAREFULL Y AND FIND NO JUSTIFICATION TO INTERFERE WITH THE ULTIMATE CONCLUSION DRAWN BY THE TRIBUNAL IN RELATION TO ASSESSMENT YEAR 2006-07. IT IS TO BE POINTED OUT TH AT THE RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 WAS FILED BY THE ASSESSEE O N 27.3.2008 ONLY IN RESPONSE TO NOTICE ISSUED UNDER SECTION 142(1) OF T HE ACT AND NOT VOLUNTARILY AS WAS THE CASE IN THE ASSESSMENT YEARS OF 2004-05 AND 2005-06. MOREOVER, THERE IS NO CAUSE EXPLAINED FOR NOT FURNISHING AUDIT REPO RT FOR ASSESSMENT YEAR 2006-07 TILL 27.3.2008 AFTER THE FILING OF RETURN FOR PRECE DING ASSESSMENT YEAR ON 7.3.2007. 3 UNDER THESE CIRCUMSTANCES, THE SUBSEQUENT PRAYER OF THE ASSESSEE TO MODIFY THE ULTIMATE RESULT IN THE APPEAL FOR ASSESSMENT YEAR 2 006-07 IS NOT ACCEPTED AND IS ACCORDINGLY DISMISSED. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS PARTLY ALLOWED, AS ABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF MAY, 2011. SD/- SD/- (SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER PUNE: DATED: 11 TH MAY, 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. MAYFAIR BUILDERS & DEVELOPERS, PUNE 2. DCIT, CIR.2 PUNE 3. THE CIT(A)-II PUNE 4. THE CIT-II, PUNE 5. THE D.R, A BENCH, PUNE 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE