RAMESH KUMAR JAIN,BIJNOR vs. ITO, BAGHPAT

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ITA 2399/DEL/2015Status: DisposedITAT Delhi04 October 2018AY 1992-936 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the assessee had obtained the tax audit report before the due date, and therefore, there was no default that warranted a penalty under Section 271B. The penalty was deleted.

What were the facts?

The assessee filed his return of income late, but the tax audit report was obtained before the due date and filed along with the return. The AO levied penalty under Section 271B for not filing the audit report within the due date.

What were the issues?

Whether penalty under Section 271B is leviable when the tax audit report is obtained before the due date but filed along with a belated return. Whether furnishing the tax audit report along with the return of income, even if the return is belated, constitutes a default under Section 271B.

Which sections of the Income-tax Act were involved?

Section 271B,Section 44AB

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH “D”: NEW DELHI

Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI

For Respondent: Shri Amit Jain, Sr. DR
Hearing: 26/07/2018Pronounced: 05/10/2018

O R D E R PER PRASHANT MAHARISHI, A. M.

1.

This appeal is filed by the assessee against the order of the ld CIT (A), Meerut dated 28.03.2014 for Assessment Year 1992-93 wherein, penalty levied u/s 271B of the Act of Rs. 28420/- is confirmed. This is the only grievance in this appeal.

2.

The assessee has raised the following grounds of appeal:- (1) That the order as passed by the authorities below is arbitrary, unjust and illegal, because the learned authorities below have erred in law as well as in facts in passing the orders. (2) That the Learned C.I.T. (A) has not considered the facts and circumstances of the case to condone the delay and case laws as referred. The assessee has shifted his business at Page | 1 civil lines, Bijnore during the F.Y. 1992-93 and it is not clear, as the order as passed by the ITO on Dt. 26.05.95 and sent by post on Dt. 30.05.95 at the old address was ever served to the assessee, as there is no evidence on the file. However the assessee has presumed, after 16 years and when the notice U/s 221 was received, that the order may have been served, which may have been handed over to the counsel. But the order was also not traced our with the counsel. So the certified copy of the order and other papers were asked from the department and the appeal was filed, with the application for condonation of delay to cooperate the department and to avoid more litigation, which was not accepted. It was not believed that notice U/s 221(1) was not served previously, without any facts, evidence, and/or material on record. Also the following case laws as referred was not considered as under:- “(1) Collector Land Acquisition & Ors V/s Mrs. Katiji & Ors. (1987 AIR 1353 S.C.) (2) N. Balakrishna V/s M. Krishnamurty (1998 AIR 3222 S.C.) (3) State of U.P. V/s Khalil (1996 AIHC

89. Alld. H.C.) (4) C.P. Enterprises V/s CTT Luck now (2006) 3. VLJ 53. Alld. H.C. (5) M/s Indian Packaging GBD V/s Trade Tax Tribunal (2006) 30. NTN 359(Alld. H.C.) (6) Sahroj Akhtar V/s Commissioner of S.Tax U.P. (2003) 22. NTN 322 (Alld. H.C.)

(7) Sangram Singh V/s Electric Tribunal Kotah (1955 AIR S.C. 425) (8) Commissioner of Sales Tax U.P. V/s Kukeraja Papers Ltd. (2004) 25 NTN 1040 (Alld. H.C.) (9) Vijay Kumar Ruia V/s CIT 242 CTR 292 (Alld. H.C.) (3) That on merits also, the learned CIT(A) has not considered the Ground No. 2 of the appeal memo and along with the ITO has also not considered the provisions of Sec. 44AB as applicable for the A.Y. 1992- 93 and the case law as referred and duly mentioned in the penalty order. (4) That without prejudice to above, the penalty as imposed is illegal, time barred, and very excessive.”

3.

The brief facts of the case is that the assessee is an individual engaged in sale and purchase of bidi, who filed his return of income on 04.01.1993 declaring total income of Rs. 28790/-. Intimation u/s 143(1) (a) was issued on 26.08.1993. Later on the ld AO noted that the assessee has shown turnover of Rs. 5684138/- and audit report as required u/s 44AB of the Act are not filed within the due date. However, he noted that along with the return of income filed on 04.01.1993, the tax audit report along with audited accounts was filed. The ld AO noted that as audited report has been filed with the belated return the assessee has exposed himself to penalty u/s 271B of the Act. Consequently, on 22.11.1994 the show cause notice was issued to the assessee. The assessee furnished its reply on 16.12.1994 stating that tax audit report was obtained on 30.10.1992 before the specified date, but the report was filed along with the Page | 3

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