DINABANDHU GHOSH,PASCHIM MEDINIPUR vs. CIT (APPEAL)-XXXII, KOLKATA, KOLKATA

The only issue is to be decided by us as to whether the CIT-A justified in confirming the impugned penalty of Rs. 91,999/- imposed u/s. 271B of the Act in the facts and circumstances of the case.

The ld.AR submits that assessee obtained 3CD/Tax Audit Report as required u/s. 44AB of the Act on 08-09-2005. By mistake the assessee filed the same along with return of income on 12-09-2005 before the ITO, Range-II, Midnapore instead of Jurisdictional ITO, Range-1, Midnapore. Again it was filed before the ITO having jurisdiction on 28-12-2005. The AO found that said return was defective and issued a notice u/s. 139(9) of the Act. The assessee filed fresh return of income on 17-08-2016. Before the AO in the penalty proceedings the ld.AR of the assessee submitted that filing of return along with the tax audit report within time specified u/s. 44AB of the Act was beyond the control of the assessee, though the tax audit report was obtained much before the specified date. The return along with the TAR [Tax Audit Report]/3CD was filed by mistake before the ITO, Range-II, Midnapore on 08-09-2005, who has no jurisdiction over the assessee. Therefore, there was no willful delay on the part of the assessee in filing the return along with TAR/3CD in time specified u/s. 44AB of the Act before the ITO, Range-I, Midnapore, who has jurisdiction over the assessee. However, the Jurisdictional AO[ITO, Range-1] found the submissions not acceptable and for not filing the return along with Tax Audit Report/3CD within the specified date i.e. 31-10-2005 u/s. 44AB of the Act, imposed the impugned penalty of Rs.91,999/-. This action u/s. 271B of the Act was confirmed by the CIT-A.

The assessee filed the appeal before the CIT-A with delay of over 10 months. The ld.AR further submits that the CIT-A did not consider the reasons stated in the delay condonation Petition filed before him and disbelieving the same dismissed the appeal, which is impugned before this Tribunal.

The ld.AR of the assessee argued that non filing of the TAR/3CD before the Jurisdictional AO within specified time was beyond the control of assessee. There was sufficient reason in not filing the same in time and the AO did not consider the same and as such imposed the impugned penalty. He also submits that without considering the reasons stated in the delay condonation petition the CIT-A confirmed the action of the AO in imposing the same and prayed to cancel the said penalty as confirmed by the CIT-A.

On the other hand, the ld. DR argued that the contentions of the assessee were not supported by any material evidence, which could suggest that there was reasonable cause in filing the return along with TAR/3CD with time specified u/s. 4AB of the Act. He relied on the orders of the AO and CIT-A.

Heard rival submissions and perused the material available on record. We find that the assessee obtained the 3CD/TAR required u/s. 44AB of the Act on 08-09-2005. Thereafter, the assessee mistakenly filed the same along with return of income before the ITO, Range-II, Midnapore on 12-09-2005, who has no jurisdiction over the assessee. After coming to knowledge that there was a mistake in filing the same before the AO, the assessee filed the same again on 28-12- 2005 before the ITO, Range-1, Midnapore, who has jurisdiction over the assessee. It is clear that the said mistake occurred in filing the return along TAR/3CD before the ITO, Range-1, Midnapore due to ignorance of the assessee. The AO did not consider the same.

It is clear from the record that the assessee preferred a petition u/s 264 of the Act before the CIT-XIX against the order of penalty and on the advice of CA and later on, it was withdrawn. Again an appeal was filed before CIT-A,XXXVII and without considering the reasons stated in the delay of condonation petition confirmed the impugned penalty, which was not justified. We find that the CIT-A while considering the issue of delay of condonation petition held that the assessee could not provide any material evidence to substantiate its contention. We find that there was no contrary evidence by the revenue to that effect that the assessee could not obtain the TAR/3CD within time specified u/s. 44AB of the Act. Thereby, we are of the view that the assessee obtained the TAR/3CD on 08-09-2005 and filed same along with the return before the AO on 12-09-2005 after the specified date us/44AB of the Act. It clearly shows that the TAR/3CD was available before the AO irrespective of respective ITO’s jurisdiction. We find that there was no deliberate or willful act on the part of the assessee which attracts the provisions of section 271B of the Act for imposition of penalty on such failure of the assessee. We find that there was sufficient reason in not filing the same before the respective AO [ITO, Range-1, Midnapore, within time. The delay in filing the same before the Jurisdictional ITO was caused due to said mistake and ignorance of assessee over jurisdiction of ITO. Therefore, we cancel the said penalty of Rs. 91,999/-imposed u/s. 271B of the Act by the AO and confirmed by the CIT-A. The same is hereby cancelled. Therefore, the grounds raised by the are liable to be allowed.

In the result, the appeal of the assessee is allowed.