Income Tax Appellate Tribunal - Jaipur
Ajmer Zila Dugdh Utpadak Sahkari Sangh ... vs Acit, Ajmer on 19 May, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM
vk;dj vihy la-@ITA No. 790/JP/2016
fu/kZkj.k o"kZ@Assessment Year : 2013-14
M/s Ajmer Zila Dugdh cuke Assistant Commissioner of
Utpadak Sahkari Sangh Ltd., Vs. Income Tax,
Opp- HMT, Beawar Road, Circle-2, Ajmer.
Ajmer.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AABAA 0141 Q
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mahendra Gargieya (Adv)
jktLo dh vksj ls@ Revenue by : Shri Raj Mehra (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 18/05/2017
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 19/05/2017
vkns'k@ ORDER
PER: KUL BHARAT, J.M. This is an appeal filed by the assessee against the order dated 13/06/2016 passed by the ld. CIT(A), Ajmer for the A.Y. 2013-14, wherein the assessee has taken following grounds of appeal:
"1. The impugned penalty order u/s 271B r/w Sec.274 of the Act dated 01.12.2014 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence, the same kindly be quashed.
2. Rs.1,50,000/-: The Id. CIT(A) erred in law as well as on the facts of the case in confirming the impugned penalty u/s 271B r/w
2 ITA 790/JP/2016_ M/s Ajmer Zila Dugdh Utpadak Sahkari Sangh Ltd. Vs ACIT Sec.274 of the Act of Rs. 1,50,000/-. The penalty so imposed & confirmed being totally contrary to the provisions of law and facts kindly be deleted in full.
3. The Id. CIT(A) erred in law as well as on the facts of the case in confirming the impugned penalty imposed u/s 271B r/w Sec.274 of the Act, completely ignoring there did exist a reasonable cause u/s 271B of the Act. The penalty so imposed & confirmed being totally contrary to the provisions of law and facts kindly be deleted in full."
2. The only effective issue involved in this appeal is against confirming the penalty U/s 271B read with Section 274 of the Income Tax Act, 1961 (hereinafter referred as the Act).
3. Briefly stated facts of the case are that the assessee had filed e- return declaring total income of Rs. 1,57,21,300/- on 20/09/2013. The Assessing Officer observed that as per notification No. 34 dated 1st May, 2013 issued by the CBDT where the assessee is required to furnish report of audit U/s 44AB or 92E of the Act, which audit report needs to be uploaded electronically. Hence, filing of tax audit report in Form No. 3CA/3CB/3CD and 3CEB in electronic form was made mandatory for the assessment year 2013-14. He observed that on perusal of the report, the assessee filed e-return vide acknowledgement No. 802207831290913 on 29/9/2013 but the requisite audit report in the requisite form in electronic form for assessment year 2013-14 was not submitted. Accordingly, a 3 ITA 790/JP/2016_ M/s Ajmer Zila Dugdh Utpadak Sahkari Sangh Ltd. Vs ACIT show cause notice for levy of penalty U/s 271B of the Act was issued to the assessee and subsequently, the impugned penalty was imposed.
3. Aggrieved by the order of the Assessing Officer, the assessee preferred appeal before the ld. CIT(A), who after considering the submissions, dismissed the appeal.
4. Now the assessee is in appeal before the ITAT. Ld. AR of the assessee has reiterated the submissions as made in the written submissions. He submitted that default was not deliberate, there was certain technical aspects which resulted into delay of uploading the requisite audit report. He submitted. Ld. Counsel submitted that technical snag as occurred in uploading of audit report on web was beyond the control of the assessee. He submitted that under the identical facts, the penalty was deleted by the Tribunal. He placed reliance on the decision of the Hon'ble Jaipur ITAT rendered in the case of Raj Kumari Bafna Vs. ITO in ITA No. 837/JP/2016 order dated 14/12/2016, Rajendra Kumar Shah Vs ITO in ITA No. 944/JP/2016 order dated 27/12/2016 and Shri Govind Garg Vs ITO in ITA No. 781/JP/2016 order dated 31/01/2017.
5. On the contrary, the ld DR has vehemently supported the order of the Assessing Officer.
6. We have heard the rival contentions of both the parties, perused the material available on the record and also gone through the orders of 4 ITA 790/JP/2016_ M/s Ajmer Zila Dugdh Utpadak Sahkari Sangh Ltd. Vs ACIT the authorities below. We find that the ITAT, Jaipur Bench in the case of M/s Vijay Food Products Vs. ITO in ITA No. 707/JP/2016 order dated 31/3/2017 has held as under:-
"2.6 We have heard the rival contentions and perused the material available on record. The return of income has been electronically filed by the assessee on 18.09.2013 wherein the particulars regarding the audit report have been duly disclosed by the assessee. In the said return it has been stated clearly that Mr. Sunil Porwal, the auditor of the company has signed the audit report on 04.09.2013 and the said audit report has been furnished on 18.09.2013. The said income tax return which has been filed electronically and contents thereof including the audit particulars have not been disputed by the Revenue. It is therefore not in dispute that the audit report has been obtained before due date of filing of the return of income and the particulars thereof have been duly disclosed in the return of income electronically filed. It was further submitted by the ld AR that the audit report in Form 3CB/3CD has been uploaded on the same date i.e. 18.9.2013 as date of filing of the return of income but due to some technical snag in the e-filing system of I.T system, the same could not be viewed later on by the AO, at the same time, the ld AR has not been able to furnish any confirmation that the audit report has been uploaded electronically on 18.09.2013. It is also a fact that the audit report has subsequently been uploaded afresh after the assessee become aware of the technical snag and also a hard copy has been furnished before the AO which is again not disputed by the Revenue. The intention behind carrying out the audit u/s 44AB and furnishing a copy of the audit report to the AO is to aid and assist the latter in completing the assessment proceedings. It is not the case of the Revenue that any prejudice or hindrance is caused to the Revenue or the audit report has been filed after the close of the assessment proceedings. Taking into consideration the intention of the legislature, and the fact that the audit report has subsequently been uploaded electronically and also hard copy has been furnished before the AO before the completion of the assessment proceedings, non furnishing of the return electronically on 18.09.2013 is merely a technical breach of the provisions of the Act and respectfully following the decision of the
5 ITA 790/JP/2016_ M/s Ajmer Zila Dugdh Utpadak Sahkari Sangh Ltd. Vs ACIT Hon'ble Supreme court in the case of Hindustan Steel Ltd. vs. State of Orissa (supra), penalty levied u/s 271B of the Act is hereby directed to be deleted.
The facts are identical in the present case, therefore, by taking a consistent view, we direct the Assessing Officer to delete the penalty.
7. In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 19/05/2017.
Sd/- Sd/-
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(BHAGCHAND) (Kul Bharat)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 19th May, 2017
*Ranjan
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- M/s Ajmer Zila Dugdh Utpadak Sahkari Sangh Ltd., Ajmer.
2. izR;FkhZ@ The Respondent- The ACIT, Circle-2, Ajmer.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 790/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar