VELLATTANJOOR SERVICE CO-OP BANK LTD,THRISSUR vs. THE ITO WARD 1 & TPS, GURUVAYOOR
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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Sanjay Arora & Shri Dr. S. Seethlakshmi
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN Before Shri Sanjay Arora, Accountant Member and Shri Dr. S. Seethlakshmi, Judicial Member ITA No. 225/Coch/2023 & SA No. 39/Coch/2023 (Assessment Year:2013-14) Vellattanjoor Service Co-operative The Income Tax Officer Bank Ltd. Ward – 1 & TPS 348, Puliyannor vs. Guruvayur, Thrissur Vellattanjoor, Thrissur 680601 [PAN:AABAV8416D] (Appellant) (Respondent) Assessee by: Shri M. Ramdas, CA Revenue by: Smt. J.M. Jamuna Devi, Sr. DR Date of Hearing: 14.12.2023 Date of Pronouncement: 29.01.2024 O R D E R Per Sanjay Arora, AM This is an Appeal by the Assessee agitating the dismissal of it’s appeal contesting the levy of penalty u/s. 271B of the Income Tax Act, 1961 ("the Act") for Assessment Year (AY) 2013-14 dated 06.01.2022 by the Commissioner of Income Tax (Appeals), Income Tax Department [CIT(A)], vide it’s order dated 06.03.2023. The assessee has also filed a stay petition for staying the outstanding demand.
The basis of the assessee’s claim before us was the delayed receipt of the audit certificate from the office of the Registrar of Societies, i.e., on 28.02.2014. The same, as well as the tax-audit report, was accordingly duly deposited along with the return of income furnished in response to notice u/s. 142(1) of the Act dated 04.04.2015. The Assessing Officer (AO) had wrongly regarded the assessee as having filed the
ITANo. 225/Coch/ 2023 (AY 2013-14) SA No. 39/Coch/2023 Vellattanjoor SCB Ltd. v. ITO same only on 04.06.2020, i.e., along with return of income furnished in response to notice u/s. 148(1) of the Act for the relevant year.
We have heard the parties, and perused the material on record. We find the assessee’s case as wholly without merit. There is, firstly, nothing on record to show that the audit certificate dated 28.2.2014 was received beyond time for reason/s beyond the control of the assessee. It is only where the assessee provides accounts or otherwise makes the same available for audit to the Auditors, furnishing timely replies to the queries raised or clarifications sought, that it can validly claim the saving of ‘reasonable cause’. Two, even so, there is nothing to show that the same, due to be filed along with audit report in Form 3CD by 30.9.2013, i.e., the due date u/s. 139(1) of the Act for the relevant year, was filed on 28.2.2014 or soon thereafter, i.e., in the beginning of March, 2014. The same stands, if at all, filed only on 05.05.2015, i.e., over 14 months later. We say so as there is no claim of it having been filed on 05.5.2015, on which date the return of income was filed along with the tax-audit report in Form 3CD. There is no explanation for the said delay; rather, the tax-audit report stands admittedly obtained only on 05.5.2015, for which there is again no explanation. As explained in Peroorkada Service Co-operative Bank Ltd. v. ITO [2020] 424 ITR 422 (Ker), relied upon by the ld. CIT(A), it is only furnishing both, i.e., the audit report under the governing law and under the Act, that is to be regarded as due compliance of section 44AB of the Act, eschewing penalty. The assessee’s argument that the audit report was available at the time of assessment proceedings, is again to no moment. A reasonable cause u/s. 273B, proving which precludes penalty, is toward delay in obtaining and furnishing the audit report/s u/s. 44AB, and not the consequence/s, whatever it may be, suffered by the Revenue due to delayed filing. The same, given that the vires of the provision is not under challenge, is irrelevant. Why, the argument is predicated on the initiation of assessment proceedings, which may not obtain. Section 44AB of the Act, as amended Page 2
ITANo. 225/Coch/ 2023 (AY 2013-14) SA No. 39/Coch/2023 Vellattanjoor SCB Ltd. v. ITO by Finance Act, 1995, delinks the furnishing of the audit report/s from the filing of the return of income, which is relevant only from the stand-point of the specified date by which the said report/s is to be furnished. The reasonable cause is primarily a matter of fact, to be determined in the conspectus of the case. No reasonable cause, much less proved, attends the assessee’s case. We having decided thus and, accordingly, disposed of the assessee’s appeal, it’s stay petition becomes infructuous. It is accordingly dismissed as such. We decide accordingly.
In the result, the assessee’s instant appeal and stay application are dismissed. Order pronounced on January 29, 2024 under Rule 34 of The Income Tax (Appellate Tribunal) Rules, 1963. Sd/- Sd/- (Dr. S. Seethalakshmi) (Sanjay Arora) Judicial Member Accountant Member Cochin, Dated: January 29, 2024 n.p. Copy to: 1. The Appellant 2. The Respondent 3. The Pr. CIT concerned 4. The Sr. DR, ITAT, Cochin 5. Guard File By Order Assistant Registrar ITAT, Cochin
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