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Income Tax Appellate Tribunal, “B” BENCH, CHENNAI
Before: SHRI A. MOHAN ALANKAMONY & SHRI V. DURGA RAO
आदेश /O R D E R
PER V. DURGA RAO, JUDICIAL MEMBER:
This appeal filed by the assessee is directed against the
order of the Commissioner of Income Tax(Appeals)-I,
Tiruchirappalli, dated 08.01.2015.
There is a delay of 10 days in filing the appeal. The
assessee has filed an affidavit for condonation of delay, wherein he
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has submitted that the order of the CIT(Appeals) dated 8th January, 2015 was served on him on 3rd March, 2015 only. Further the assessee has stated that as his counsel was not in the town, his counsel could prepare the papers only on 9th May, 2015 and finally he could file the appeal only on 12.05.2015. Hence there was a delay of 10 days in filing the appeal and he has prayed for condonation of the same.
On the contrary, the Ld. Departmental Representative has not raised any serious objection.
We find that there is a sufficient reason for not filing the appeal within the stipulated period and we find that this is a fit case to condone the delay. Accordingly, the delay of 10 days is condoned and the appeal is admitted.
Coming to the merits of the case, facts in brief are that the assessee is an individual and he filed the return of income for the year under consideration enclosing audit report in Form 3CD and 3CB dated 09.03.2007, on 13.03.2007. The return filed by the assessee was processed under Section 143(1) of the Income-tax Act, 1961 (in short 'the Act'). The penalty proceedings are also initiated against the assessee under Section 271B of the Act by the
3 I.T.A. No.1116/Mds/15
Assessing Officer on the ground that the assessee has violated the
provisions of Section 44AB of the Act and observed that the
assessee should have filed the return of income on 31.10.2006 or
the assessee should have obtained the audit report before
31.10.2006 as required under the provisions of Section 44AB of the
Act. On receipt of the penalty notice, the assessee explained
before the A.O. that he had filed the original return along with Form
3CD & 3CB for the assessment year 2006-07 on 13.03.2007and
revised return on 20.02.2008. He further stated that since there
was a survey conducted in his case during February, 2006 and
books of account were impounded by the Income-tax Department,
he filed the return along with tax audit report on 13.03.2007, i.e.
before the end of the assessment year. However, the A.O. was not
satisfied with the explanation of the assessee on the ground that
even if there was a survey conducted and books were with the
Department, the assessee should have made an application for
release of the books and the accounts should have got audited in
time. Therefore, he imposed penalty under Section 271B of the Act.
On appeal by the assessee, the CIT(Appeals) confirmed the
penalty imposed by the A.O.
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We have heard both sides and perused the records and
gone through the orders of the authorities below. The penalty is
imposed in this case under Section 271B of the Act on the ground
that there was a delay for obtaining the audit report under Section
44AB of the Act. The assessee has explained before the Assessing
Officer that the delay was due to survey conducted and all the
books were impounded by the Department, therefore, he was not
able to get the accounts audited in time, i.e. as required under the
provisions of Section 44AB of the Act. The Assessing Officer
accepted that the books were with the Department. However, he
rejected the explanation of the assessee on the ground that the
assessee should have requested the Department to release the
books. We find that the Department has not denied that the books
were with them. The only ground for penalty was that the assessee
ought to have requested the Department for release of the books.
When there was a survey conducted and when the books were with
the Department and when the books were released, immediately
the assessee got the accounts audited and submitted before the
A.O. Under these facts and circumstances, we are of the opinion
that there is a justified reason for the assessee for not filing audit
report in time. Therefore, Section 271B cannot be attracted in this
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case. Thus, the penalty imposed by the A.O. and confirmed by the CIT(Appeals) is quashed.
In the result, the appeal filed by the assessee is allowed.
Order pronounced on 19th August, 2015 at Chennai.
sd/- sd/- (ए. मोहन अलंकामणी) (वी. दुगा� राव) (A. Mohan Alankamony) (V. Durga Rao) लेखा सद�य/Accountant Member �या�यक सद�य/Judicial Member
चे�नई/Chennai, �दनांक/Dated, the 19th August, 2015. Kri. आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु�त (अपील)/CIT(A), Tiruchirappalli-1 3. आयकर आयु�त/CIT-1, Trichy 4. �वभागीय ��त�न�ध/DR 5. गाड� फाईल/GF.