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Income Tax Appellate Tribunal, MUMBAI BENCH “ H ”, MUMBAI
Before: SHRI VIKAS AWASTHY & SHRI GAGAN GOYAL
Since, these appeals arise from identical set of facts all these appeals are taken up together for adjudication and are decided by this common order.
These appeals are time barred by 34 days (Appeal in for Assessment Year 2009-10 is time barred by 269 days). The delay in filing of appeal has been attributed to the failing and fragile health of the Director of the assessee company. In so far as the delay in ITA NO.2808/Mum/2022, the ld. Authorized Representative for the assessee submits that the impugned order was passed on 09/12/2021 i.e. during the COVID-19 Pandemic period. The limitation for filing of the appeal during COVID-19 period was extended by the Hon’ble Apex Court taking suo-motu cognizance of the hardship caused by the COVID-19 Pandemic. The ld. Authorized Representative for the assessee further submits that the assessee is a Sr.Citizen and his business has closed down and is not having assistance from any of the supporting staff.
3.1 We have heard the submissions of ld. Authorized Representative for the assessee on condonation of delay. The assessee has filed an affidavit citing reasons for delay in filing of appeals. After having examined the contents of the affidavit and submissions of the ld. Authorized Representative for the assessee, we are satisfied that delay in filing of appeals is not intentional but has caused due to reasons stated in the affidavit. The reasons causing delay prime-facie appears to be bonafide. The Hon'ble Apex Court in various decisions has held that acceptance of explanation furnished for seeking condonation of delay should be the rule and denial an exception. Taking into consideration entire facts, the delay in filing of appeals is condoned and appeals are admitted to be heard and disposed of on merits.
Shri Dharmil A. Jhaveri appearing on behalf of the assessee submits that the assessee is a company engaged in trading of ferrous and non-ferrous metals. The assessment for Assessment Years 2009-10,2010-11 and 2011-12 in the case of assessee was reopened for the reason that the assessee allegedly obtained bogus purchase bills from hawala entry providers. In assessment proceedings the assessee was directed to furnish books of account. The Authorized Representative for the assessee appeared and furnished copy of the annual return, names and address of the sales and purchase parties. However, due to some communication gap between the assessee and its Authorized Representative, certain documents remain to be furnished. The Directors of the assessee company are Sr. Citizens and were enable to look after the affairs of the company. Gradually, the sales of the assessee company declined and now the assessee is not carrying out any business, The assessee is a company registered under the Companies Act and therefore, was required to maintain books of account and duly audited. The books of the assessee for assessment year 2009-10, 2010-11 & 2011-12 were duly maintained and were audited, however, the same could not be furnished before the Assessing Officer. Therefore, the Assessing Officer levied penalty u/s. 271A and u/s. 271B of the Act for all the three impugned assessment years. The ld. Authorized Representative for the assessee furnished copy of the Audit Report for Assessment Years 2009-10, 2010-11 and 2011-12 and submitted that non- furnishing of audited accounts and the audit reports before the Assessing Officer was not intentional. The ld. Authorized Representative for the assessee prayed for deleting the penalties levied u/s. 271A and u/s. 271B of the Act for the Assessment Years 2009-10, 2010-11 and 2011-12.
Per contra, Shri Tejinder Pal Singh Anand representing the Department vehemently defended the impugned order and prayed for dismissing the appeals of assessee.
We have heard the submissions made by rival sides and have examined orders of authorities below. The penalty proceedings u/s. 271A and u/s. 271B of the Act were initiated against the assessee in the impugned assessment years for non-maintenance of books of account and failure to get accounts audited. The ld. Authorized Representative for the assessee has placed on record audited reports for Assessment Years 2009-10, 2010-11 and 2011-12, respectively and has explained the reasons for non-furnishing of audited accounts and the audit report before the Assessing Officer. After having considered the reasons, we are satisfied with reasonableness of the cause for non-furnishing of accounts and audit report before the Assessing Officer. In the entirety of facts we are of considered view that it is a fit case for deleting penalties levied u/s. 271A and u/s. 271B of the Act in the impugned Assessment Years i.e. 2009-10, 2010-11 and 2011-12. We hold and direct accordingly. The impugned orders are set-aside and the appeals are allowed.
In the result, appeals of the assessee in to 2810/MUM/2022 for assessment years 2009-10 to 2011-12 are allowed.