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North Eastern Constructions, ... vs Income Tax Officer, Ward-1(2), ... on 17 June, 2020

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                                                                              ITA No. 184/Gau/2019
                                                                          North Eastern Constructions

     IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, "E
                              COURT" AT KOLKATA
       (सम )  ी ऐ. ट . वक ,  यायीक सद य एवं डॉ. अजन   ु  लाल सैनी, लेखा सद य)
                [Before Shri A. T. Varkey, JM & Dr. A. L. Saini, AM]

                                I.T.A. No. 184/Gau/2019
                                Assessment Year:2015-16

North Eastern Constructions                Vs.    The ITO, Ward-1(2), Dibrugarh
PAN: AALFN 7864Q
Appellant                                         Respondent
       Date of Hearing                     11.06.2020
       Date of Pronouncement               17.06.2020
       For the Appellant                   Shri Sanjay Modi, FCA, ld.AR
       For the Respondent                  Shri M. K.Das,Addl. CIT, Sr. DR


                                           ORDER
Per Shri A.T.Varkey, JM

This is an appeal preferred by the assessee against the order of Ld. CIT(Appeals), Dibrugarh dated 14-03-2019 for the AY 2015-16, confirming the penalty levied u/s. 271B of the Income-tax Act, 1961 (hereinafter referred to as the "Act").

2. Ground nos. 2,3 and 7of the grounds of appeal are taken first, which reads as under:-

"2. For that the penalty notice dated 15.05.2018 issued under section 274 r.w.s 271B being vague and unspecific, the penalty order passed in pursuance thereto is untenable and bad in law.

3. For that the initiation of penalty proceedings in the instant case for imposing penalty under section 271B is without jurisdiction and bad in law and consequently, the penalty order passed in pursuance thereto is void.

7. For that on the fact that the audit of immediately preceding assessment year having been completed on 23.03.2016, the ld. CIT(A) ought to have hold that the audit for the year under consideration completed on 28.03.2016 was due to reasonable cause as envisaged under section 273B of the Act and consequently, no penalty is legally leviable in the instant case. "

North Eastern Constructions

3. Brief facts of the case are that the AO noted that the assessee had turnover of Rs. 2,08,57,841/- for the AY 2015-16 (erroneously typed in the penalty order dated 30.11.2018 as AY 2016-17) and, therefore, according to him (AO) the assessee was required to get its accounts audited u/s. 44AB of the Act before 30-09-2015 (erroneously typed in the penalty order of the AO as 30-09-2016) and Tax Audit Report ( in short, the 'TAR') by 30-09-2015 ((erroneously typed in the penalty order of the AO as 17-10-2016). According to him, since no TAR (Tax Audit Report) was furnished by the assessee by or before the specified date, the AO after issuing penalty notice dated 15-05-2018 for proposing levy of penalty u/s. 271B of the Act was pleased to levy penalty of Rs. 1,04,289/- by holding as under:

Order under section 271B of the Income Tax Act, 1961 The assessee had turnover of Rs. 2,08,57,841/- for the A.Y 2016-17 and therefore, the assesee was required to get its accounts audited u/s 44AB of the Act before 30-09-2016 and furnish tax audit report by 17-10-2016 . No such tax audit report was furnished by the specified date and accordingly a show cause notice dated 15-05-2018 for levy of penalty u/s 271 B of the Act was issued.

2. A reminder letter was issued on 05-06-2018. In response the assessee submit a petition dated 04-09-2018 wherein the assessee states that the accountant of the assessee the left the services without finalizing the accounts and another accountant was appointed in his place that resulted in delay in finalizing accounts as well as getting the accountants audited and hence caused delay in submission of Audit Report.

3. The explanation submitted by the assessee not acceptable penalty u/s 271 B of the Income Tax Act 1961 is hereby imposed.

4. In this background penalty u/ s 271 B @ 0.50% or Rs. 1,50,000/- of the total turnover whichever in less, the gross receipt of the assessee Rs.

2,08,57,841/- and penalty U/s 271 B of the Income Tax Act, 1961 is levied at Rs. 1,04,289/- with the prior approval of the Joint Commissioner of Income Tax for not obtaining and furnishing audit report before the specified date u/s 44AB of the Act.

Accordingly demand notice, challan along with copy of the order is issued."

North Eastern Constructions

4. Aggrieved by the aforesaid order of penalty levied u/s. 271B of the Act, the assessee preferred an appeal before the ld. CIT(A), who was pleased to confirm the same by passing the impugned order. Aggrieved, the assessee is before us and pressed ground nos. 2, 3 & 7 of the grounds of appeal, which has been reproduced hereinabove.

5. Assailing the decision of the ld. CIT(A), Shri Sanjay Modi, ld.AR of the assessee drew our attention to page-1 of the paper book (P/B) and submitted that the show cause notice issued by the AO (ITO, W-1(2), Dibrugarh before levying of penalty dated 15-05- 2018 is vague and therefore, bad in law. According to him, the penalty notice does not specify the fault/charge against the assessee, for which the proposed penalty is intended to be levied, so according to him since the fault for which the penalty is proposed to be levied is not clear, and it is vague, therefore, according to him, the show cause notice dt. 15.5.2018 was bad in law and consequently levy of penalty itself is bad and need to be cancelled. For convenience impugned notice u/s. 274 read with section 271B of the Act dated 15-05-2018 is reproduced hereunder:-

Whereas in the course of proceedings before me for the Assessment Year 2015-16, it appears to me that you have failed to get accounts audited or failed to furnish a report of such audit as required under section 44AB of the Income Tax Act, '1961.

You are hereby requested to appear before m either personally or through a duly authorised representative at 11:00 AM on 251051 018 and show cause why an order imposing a penalty on you should to not be made under section 271B of the Income Tax Act, 1961 If you do not wish to avail yourself of this opportunity of being hard in person or through authorised representative you may show cause !n writing on or before the said date which will be considered before any such order is made under section 271B of the Income Tax Act, 1961"

6. In order to bolster his above contention the ld.AR relied on the order of the Delhi Tribunal (ITAT Delhi) in the case of M/s. Parkinson Electrical Corprn Vs. ITO reported in (1996) 84 Taxman 82 (Delhi) (Mag.), placed at page-14 of the P/b, wherein the Tribunal held as under:-

North Eastern Constructions Head Note Even otherwise also the penalty could not be sustained as the notice issued under section 271B was vague. The Assessing Officer, .by issuing the penalty notice under section 271B, had not brought home to the assessee his fault, precisely. In other words, he had not precisely informed the assessee under which situation of section 271 B the assessee came. Even in the penalty order, the Assessing Officer had not stated under which situation the assessee had been caught. He had simply stated that the assessee had no objection for the proposed penal action. Before a penalty is imposed, the assessee must be apprised of the precise charge brought against him. In the absence of a precise charge, the levy of the impugned penalty was not justified. "

7. Moreover, the ld.AR also submitted that pursuant to the show cause notice issued by the AO proposing levy of penalty u/s. 271B of the Act, it was brought to the notice of AO that assessee's accountant had left the service/office without finalizing the accounts for the preceding FY i.e AY 2014-15 which was, therefore, completed only on 23-03-2016 and, therefore, for the year under consideration i. e AY 2015-16, the audit could not be completed within the stipulated date and could be completed only on 28-03-2016. Thus, according to ld AR the assessee could submit the TAR on 31-03-2016 along with return of income. Therefore, according to the ld. AR there was reasonable cause for not filing the tax audit report (TAR) within the stipulated time i.e by 30-09-2015. However, according to ld. AR the AO has not given any reason for rejecting the explanation as given by the assessee and in the first appellate order, the ld. CIT(A) also has brushed aside this explanation of assesse on surmises and conjectures. According to the ld.AR, similar explanation for delay in filing TAR (Tax Audit Report) was taken up by the assessee before Ahmedabad Bench of this Tribunal [ Third Member ] case of ACIT Vs. Kamlesh R. Agarwal (HUF) reported in (2006) 99 ITD 27 (Ahd. TM), wherein it was held to constitute reasonable cause for the purpose of section 273B of the Act. The head note reads as under:-

Section 271B, read with section 44AB, of the Income-tax Act, 1961 - Penalty - For failure to get accounts audited -

Assessment year 1994-95 - Whether delay in completion of audit of earlier year would constitute reasonable cause for delay in getting accounts of 5 ITA No. 184/Gau/2019 North Eastern Constructions subsequent year audited because audit for subsequent year cannot be completed without opening balances of earlier year - Held, yes - Whether where after audit of accounts of earlier year, assessee took about 4 to 5 months in getting accounts audited for year under consideration which was reasonable period for getting accounts audited, Assessing Officer was not justified in levying penalty under section 271B on assessee - Held, yes

8. Therefore, the ld. AR urged us to delete the impugned penalty levied u/s. 271B of the Act on both aforesaid grounds. He also pointed out that the dates mentioned by the AO in respect of due dates etc as well as the mention of AY 2016-17 clearly show that the AO has not applied his mind while passing the penalty order. Therefore, looking from any angle the order of the AO levying penalty u/s. 271B is bad in law and need to be cancelled.

9. Per contra, learned Departmental Representative vehemently opposing the contention of the ld.AR contended that the ld. CIT(A) has clearly found that the dates mentioned in the penalty order in respect of submission of TAR etc. was typographical error and therefore, no adverse view need to be drawn against the revenue. He also submitted that assessee's explanation for delay in filing TAR (Tax Audit Report) of this year was because of not getting the earlier year accounts audited cannot be accepted as a reasonable cause as observed by the ld. CIT(A) in his order and therefore, he wants us not to interfere in the order of the ld. CIT(A).

10. We have heard both the parties and perused the records. We note that the assessee had filed return of income for the AY 2015-16 on 31-03-2016 along with TAR. Thereafter, we note the department accepted the return of income filed by the assessee by issuing intimation u/s. 143(1) of the Act on 28-05-2016. After two years on 15-05-2018, the AO had issued notice u/s. 274 read with section 271B of the Act proposing to levy of penalty u/s. 271B for the following faults:

       i)     failed to get accounts audited or
       ii)     failed to furnish a report of such audit as required u/s. 44AB of the Act".

11. Thus, we note that the AO has given a show cause notice, which is per-se vague. Thus, we note that the AO by issuing penalty notice u/s. 271B has not spelt out what was the fault for which the assessee is being proceeded against for levy of penalty. Since the AO 6 ITA No. 184/Gau/2019 North Eastern Constructions has not struck down the irrelevant portion/fault which is not applicable in the facts and circumstances of the case, the notice reproduced (supra) is vague and therefore, bad in law as held by the Co-ordinate Bench of the Tribunal in the case of Parkinson Electrical Corprn (supra). We are of the opinion that notice proposing penalty should clearly spell out the fault/charge for which the assessee is put on notice, so that he can defend the charge properly. The issue of bad/vague penalty notice was adjudicated by the Hon'ble Karnataka High Court [though in a different context i.e notice issued u/s. 274 read with section 271(1)(

c) of the Act] in the case of CIT vs. SSA's Emerald Meadows in ITA No.380 of 2015 dated 23.11.2015 wherein the Hon'ble High Court following its own decision in the case of CIT vs Manjunatha Cotton and Ginning factory (2013) 359 ITR 565 has held that if the penalty notice is vague, then the penalty order is also bad in the eyes of law. This decision of Karnataka High Court was challenged by the Revenue before the Hon'ble Apex Court, and the Hon'ble Supreme Court has dismissed the SLP. Therefore, applying the ratio-dicedenti in SSA's Emerald Meadows & M/s. Parkinson (supra), we are of the view that the notice issued by AO before levying penalty u/s. 271B of the Act is bad in law.

12. Moreover, we note that the assessee had furnished the TAR belatedly on 31-03-2016 along with the return of income, which has been accepted by the department and intimation u/s. 143(1) of the Act has been issued. Pursuant to the show cause notice before imposing penalty, the assessee had explained before the AO the cause for delay in filing the TAR. The assessee explained that delay happened due to the fact that for earlier year [i.e. AY 2014-15] the audit report could not be completed on time and could be completed only on 23-03- 2016. This happened because the accountant of the assessee, who used to handle the accounts had suddenly left the office/service in earlier year without properly handing over the books maintained by the assessee. We are of the opinion that the explanation given by the assessee cannot be held to be unreasonable. We note that in a similar case , where facts and circumstances of the case was same, the Ahmedabad Bench of this Tribunal in the case of Kamlesh R. Agarwal (HUF) has given relief to the assessee by holding that delay in getting accounts of the earlier year can be reasonable ground as stipulated u/s. 273B of the 7 ITA No. 184/Gau/2019 North Eastern Constructions Act. Therefore, we find that there was reasonable cause for not filing the TAR within due date. Moreover, we also note that there has been several mistakes which has crept in the impugned penalty order of the AO, which shows total non- application of mind of necessary facts by the AO. Therefore, from any angle as discussed supra, the penalty levied u/s. 271B cannot be sustained, so it needs to be deleted and we direct the AO to do so.

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

       Order is pronounced in the open court on 17th       June, 2020.
       Sd/-                                                                     Sd/-
(Dr. A. L. Saini)                                                        (Aby. T. Varkey)
Accountant Member                                                         Judicial Member
                                    Dated : 17th June, 2020
**PP(Sr.P.S.)
Copy of the order forwarded to:

1. Appellant - M/s. North Eastern Constructions, Circuit House Road, Paltan Bazar, Dibrugarh, Assam-786001.

2 Respondent - Income Tax Officer, Ward-1(2), Dibrugarh, Assam-

786008.

3. CIT(A), Dibrugarh

4. CIT, Dibrugarh

5. DR, ITAT, Guwahati.

          /True Copy,               By order,
                                                           Senior Pvt. Secy.