B.R CHARITABLE TRUST,JAMMU vs. INCOME TAX OFFICER (EXEMPTION)- WARD, JAMMU

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER

I.T.A. No.21/Asr/2019 Assessment Year: 2012-13

B.R. Charitable Trust, Sector -6, Vs. ITO, (Exemption), Gangyal Jammu-180003 Ward-Jammu. [PAN: AABTB4276G] (Appellant) (Respondent)

Appellant by None. (Written submission) Respondent by Sh. Surendra Nath, Sr.DR

Date of Hearing 10.10.2022 Date of Pronouncement 18.10.2022

ORDER Per:Anikesh Banerjee, JM:

The instant appeal of the assessee is directed against the order of the ld. Commissioner of Income Tax(Appeal), Jammu, [in brevity the CIT(A)] bearing appeal No.329/IT/CIT(A)/Jammu/2015-16, date of order 04.10.2018, the order

passed u/s 250 (6) of the Income Tax Act 1961, [in brevity the Act] for A.Y. 2012- 13.The impugned order was emanated from the order of the ld. Joint

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Commissioner of Income Tax (Exemption), Range-1, Chandigarh, (in brevity the AO) order passed u/s 272A (2) (e) of the Act date of order 16.11.2015.

the penalty proceeding was initiated u/s 272A (3). Total delay for filing the return for this assessment year was 182 days. The penalty was levied Rs.100 per day which is worked out amount of Rs.18,200/- The order was accordingly passed by

the ld. AO u/s 272A(2)(e) of the Act. During the assessment proceeding the assessee was unable to submit the documents before the authority. Against the order of the ld. AO, the appeal was filed before the ld. CIT(A). After considering

the submission of the assessee the ld. CIT(A) upheld the order of the ld. AO. Aggrieved assessee filed an appeal before us. 3. During hearing, none was present on behalf of the assessee. The Chairman

of the Trust had filed a written submission from pages 1 to 19 which is kept in record. Considering the request of the assessee through written submission, the matter is taken up for hearing with the consent of ld. Sr. DR.

I.T.A. No.21/Asr/2019 3 Assessment Year: 2012-13

available in the records and the order of both the revenue authorities.

The assessee has violated the provisions of section 139(4A) in terms of filing of

the return for A.Y. 2012-13 and default was 182 days. During appeal proceedings

the assessee filed the detailed submission and explanation related to delay in filing

the return.

4.1 In the penalty proceeding the observation of the ld. AO is extracted here

from the order para 2 is extracted below:

“2. Challenging the aforesaid imposition of penalty, it was contended by the Appellant Trust that it was under a bonafide belief that penalty would not be leviable if the income is below the taxable limit without claiming the exemption of 15% under section 11 (1) of the Income Tax Act, 1961. It was further averred that the Accountant of the Appellant Trust left the service on 01/09/2012 and, thus, could not complete the books of accounts of all the units within time. An affidavit of the accountant was also enclosed in support of the confirmation of the delay in completion of accounts by the Accountant.”

I.T.A. No.21/Asr/2019 4 Assessment Year: 2012-13

4.2 The assessee pointed out that due to the death of the regular accountant the

new accountant had taken the charge and this is the reason of delay. The details

was submitted before the assessing authority and the ld. CIT(A). A copy of the letter is enclosed in APB pages 9 to 10. The assessee further placed that there is no

claiming of exemption u/s 11 in the return of income as the assessee had claimed

the loss in the balance sheet. He further mentioned that the affidavit of the chairman of the trust is enclosed in APB pages 17 to 18. As per the explanation in

the affidavit of chairman of trust explaining that old accountant met with accident

and then died and new accountant Mr. Kuldeep Singh appointed and could not able

to complete the accounts in time. Hence, the delay in filing the return being

reasonable cause covered u/s 272B.

4.3 After the thoughtful consideration we are in the opinion that there is a

reasonable cause for filing return in delay by 182 days.We relied on the order of the Hon'ble Supreme Court in the case ofHindustan Steel Ltd. v. State of Orissa, [1972] 83 ITR 26 held as follow: -

"An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of

I.T.A. No.21/Asr/2019 5 Assessment Year: 2012-13

conduct contumacious or dishonest, or acted in conscious disregard to 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 provision of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute".

4.4 Accordingly we set aside the order of penalty and deleted the penalty

amount of Rs.18,200/-. In the result, the appeal of the assessee bearing ITA No.21/Asr/2019 is 5.

allowed.

Order pronounced in the open court on 18.10.2022

Sd/- Sd/-

(Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member

AKV Copy of the order forwarded to:

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(1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T.