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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 1022/JP/2017
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; ikWy jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 1022/JP/2017 fu/kZkj.k o"kZ@Assessment Years : 2012-13 cuke M/s Nigam Jewels Pvt. Ltd., ITO, Vs. H-45, SEZ-1, RIICO Industrial Ward-7(2), Area, Sitapura, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AADCN2403N vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri P. C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Poonam Rai (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 02/04/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 04/04/2018 vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A)-3, Jaipur dated 23.11.2017 for Assessment Year 2012-13 wherein the assessee has challenged the action of ld. CIT(A) in confirming the levy of penalty of Rs. 1 lac u/s 271BA of the IT Act, 1961. 2. Briefly stated, the facts of the case are that during the course of assessment proceedings, the Assessing Officer observed that as per the provisions of section 92E, the assessee is required to furnish Form No.
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3CEB given details of its international transaction and as the assessee has failed to comply with the provisions of section 92E of the Act within the stipulated time, the assessee is liable for penalty proceedings u/s 271BA of the Act which were initiated separately.
During the course of penalty proceedings, the assessee submitted that in respect of its international transactions entered into with its associated enterprises, the assessee has obtained a report from a Chartered Accountant in Form No. 3CEB on 03.09.2012 and copy of the said report was required to be filed by the Assessing Officer on 12.12.2014 which was filed vide assessee’s letter dated 24.12.2014 during the course of assessment proceedings. Further, the assessee submitted that as per the CBDT Circular No. 06/2018 dated 18.07.2008, the requirement of attaching any documents with the return of income is dispensed with and it is provided in the said circular to submit such documents as and when the AO calls for such documents. It was accordingly submitted that the assessee has filed the audit report as soon as the AO has called for the same and therefore, the assessee has complied with the provisions of section 92E of the Act. However, the submissions of the assessee was not found acceptable and the Assessing Officer levied a penalty of Rs. 1 lac u/s 271BA of the Act.
Being aggrieved, the assessee carried the matter in appeal before ld. CIT(A) and submitted that the only default on part of the assessee is that it has not filed the audit report u/s 92E electronically. It was further submitted that this default has arisen because initially by the IT (Third Amendment) Rule, 2013 dt. 01.05.2013, assessee was required to file only the tax audit report u/s 44AB electronically and it was filed by the
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assessee while e-filing the return on 30.09.2014. Thereafter, by IT (Seventh Amendment) Rule, 2013 dt. 11.06.2013, the audit report u/s 92E was also required to be filed electronically with the return. This amendment missed the attention of the assessee as it was the first year for assessee for furnishing the audit Report. Therefore, audit report could not be filed electronically. Hence, there is a reasonable cause for not e-filing the audit report electronically though filed before the AO in course of assessment proceeding. It is held in various cases that obtaining the audit report to claim exemption/deduction wherever required by a section is a mandatory requirement but filing of the same is a procedural requirement and therefore, even when such report is filed before the completion of assessment, the requirement of the section as to the filing of the report should be taken as complied with. The ld. CIT(A) however was of the view that no reasonable cause has been made out by the assessee which prevented the assessee from filing the audit report u/s 92E electronically with the return of income. Therefore, he confirmed the levy of penalty so imposed by the Assessing Officer.
During the course of hearing, the ld. AR drawn our reference to CBDT Circular No. 06/2008 dated 18.07.2008 which talks about matters connected with new income tax return forms to be filed electronically for AY 2008-09 onwards and drawn our reference to Para 2 and 4 of the said Circular which reads as under:-
“2. It has come to the notice of the Board that in spite of the directions contained in the Instructions for filing the return forms, the practice of accepting returns, along with annexures is still continuing.
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This practice goes against the expressed policy of the Government and is not in consonance with the legal provisions. Therefore, it is emphasized that Chief Commissioner of Income Tax must ensure strict compliance with the provisions of law. It may be reiterated that all annexures accompanying the income tax return forms should be detached and returned to the tax payers by the receiving official.
Assessees are advised to retain with themselves all annexures relating to computation of income, TDS/TCS certificate, counterfoil of challans relating to payment of advance tax and self assessment tax, audit reports and any other document which they would have otherwise liked to file in support of their claims. The original documents and certificates may be produced by them as and when called for by the Assessing Officer.”
Further, our reference was drawn to the notification dated 1st 6. May, 2013 whereby the CBDT has notified the Income tax (3rd Amendment) Rules 2013 whereby in Rule 12, the following proviso has been stated to be inserted with effect from 1st of April, 2013:
“provided that where an assessee is required to furnish a report of audit u/s 44AB, 92E or 115JB of the Act, he shall furnish the same electronically.”
It was submitted that the said amendment has been brought-in with effect from 1st of April, 2013 relevant to assessment year 2013-14 and prior to that, there was no requirement to submit the audit report electronically and the assessee was under a bonafide belief that there is no such requirement to enclose the audit report along with the return of
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income which was filed electronically. Alternatively, it was submitted that being the first year where such amendment has been brought-in in the statue and in the past, there was no such requirement to file audit report electronically, the assessee was having reasonable cause for not filing the audit report electronically for the year under consideration.
Per contra, the ld. DR referred to the assessment order as well as the penalty order and submitted that it is not a case where the audit report in Form No. 3CEB filed electronically within the stipulated time as prescribed rather it seems that it is a case where audit report has not been filed at all by the assessee even manually during the course of assessment proceedings.
In his rejoinder, the ld. AR referred to the penalty order wherein it has been stated that a copy of the audit report was filed during the course of assessment proceedings vide letter dated 24.12.2014 and therefore filing of the audit report with the Assessing Officer cannot be disputed.
We have heard the rival contentions and pursued the material available on record. The limited issue under consideration is whether the assessee was required to file the audit report in Form 3CEB in respect of its international transactions electronically for the year under consideration. If the answer to the same is in affirmative, whether there is a reasonable cause shown by the assessee for not filing the same.
Section 92E provides that every person who has entered into an international transactions during the previous year shall obtaine a report
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from an accountant and furnish such report on or before the specified date in the prescribed form dully signed and verified in the prescribed manner by such accountant and setting forth such particulars as may be prescribed.
The Income Tax Rule 12(2), prior to the amendment brought in by the Income tax (3rd Amendment) Rules, 2013, provides that:
“(2) The return of income required to be furnished in Form SAHAJ (ITR- 1) or Form No. ITR-2 or Form No. ITR-3 or Form No. ITR-5 or Form No. ITR-6 shall not be accompanied by a statement showing the computation of the tax payable on the basis of the return, or proof of the tax, if any, claimed to have been deducted or collected at source or the advance tax or tax on self-assessment, if any, claimed to have been paid or any document or copy of any account or form or report of audit required to be attached with the return of income under any of the provisions of the Act”
Thereafter, through the Income tax (3rd Amendment) Rules, 2013 vide notification dated 1.5.2013, a proviso has been inserted to Rule 12(2) with effect from 1st of April, 2013 which provides that:
“Provided that where an assessee is required to furnish a report of audit u/s 44AB, 92E or 115JB of the Act, he shall furnish the same electronically.”
On close reading of the above provisions and also as clarified by the CBDT, we find that there was no requirement to file audit report in Form 3CEB electronically along with electronic filing of the return of income. However, the said requirement to furnish audit report
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electronically has been made applicable for all filings which are due on or after 1st Day of April, 2013. Therefore, for the year under consideration i.e, AY 2012-13, pursuant to the amendment in the Rules, being the procedural law, the assessee was required to file the audit report electronically. However, at the same time, we find that there was apparently no such requirement to file the audit report electronically all these years where the electronic filing of returns has been specified. Given the said consistent position in law and the fact that the amendments have been brought in for the first time starting the year under consideration, the bonafide of the assessee cannot be doubted and we agree with the contention of the assessee that the said amendment in the procedural law has missed the attention of the assessee and there was a reasonable cause for such non-compliance by way of non- filing of audit report electronically.
In this regard, we refer to the decision of the Co-ordinate Bench in case of Open Technologies India Pvt. Ltd. vs. DCIT (2010) 29 CCH 0954 Del Trib wherein it was held as under:-
“8. Now in the present case, we find that assessee has claimed that the said audit report was obtained much earlier than the due date for filing the return. The same could not be filed alongwith the return as the return was filed electronically and the assessee was under the belief that any annexures etc. were not to be filed alongwith the return. Affidavit from Director and Chartered Accountant is also on record that the report in Form No. 3CEB was obtained on 1.9.2006 i.e. before the due date for filing the return. The assessee had also provided the said report to the Assessing Officer before the completion of the assessee.
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Under the above said circumstances, in our considered opinion, there was reasonable cause for the assessee in not filing the report in Form No. 3CEB along with the return of income. Hence in our considered opinion, section 271BA. The case laws referred by the Revenue are not applicable in this case on the facts of the present case in as much as in this case we have found that there was reasonable cause for the failure of the assessee to comply with the provision of the Act.
In this regard we place reliance from the Apex Court decisions rendered by a larger Bench comprising of three of their Lordships in the case of Hindustan Steel vs. State of Orissa in 83 ITR 26 wherein it was held that “An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceedings, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act, or where the breach flows from a bonafide belief that the offender is not liable to act in the manner prescribed by the statute.”
9 ITA No. 1022/JP/2017 M/s Nigam Jewels Pvt. Ltd., Jaipur vs. ITO, Jaipur 10. In the background of the aforesaid discussion and precedent, we set aside the orders of the authorities below and delete the levy of penalty of Rs. 1,00,000/-”
In light of the above discussions, we find that there was a reasonable cause on part of the assessee for not filing the audit report electronically and the penalty levied under section 271BA is hereby directed to be deleted.
In the result, appeal of the assessee is allowed.
Order pronounced in the open Court on 04/04/2018.
Sd/- Sd/- ¼fot; ikWy jko½ ¼foØe flag ;kno½ (Vijay Pal Rao) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 04/04/2018 *Ganesh Kr. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- M/s Nigam Jewels Pvt. Ltd., Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward-7(2), Jaipur 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File { ITA No. 1022/JP/2017} vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत