M S Jaychand Lal Bachhraj Kolkata v. Ito Wd 3 1 Malda Malda

In The Income Tax Appellate Tribunal D Be Nch Kolkata Before Shri Waseem Ahmed Accountant Memb Er And Shri S S Viswanethra Ravi Judicial Member Ita No 1394 Kol 2015 A Y 2013 14 M S Jaychand Lal Vs Ito Ward 3 1 Malda Bachhraj Pan Aacfja 595 P Applicant Respondent Appellant By S Shri S L Kochar Anil Kocha R Advocates Ld Ar Respondent By Shri Robin Chowdhury Addl Ci T Ld Dr Date Of Hearing 03 10 2017 Date Of Pronouncement 13 12 2017 Order Shri S S Viswanethra Ravi Jm This Appeal By The Assessee Is Against The Order Dt 22 09 2015 Of The Cit A Jalpaiguri For The A Y 2013 14 Wher Ein He Confirmed The Penalty Of Rs 1 50 000 Imposed By The Ao U S 271 B Of The Act 2 Therefore The Only Issue Is To Be Decided As To Whether The Cit A Was Justified In Confirming The Impugned Pena Lty Imposed U S 271 B Of The Act In The Facts And Circumstances Of T He Case 3 Brief Facts Of The Case Are That The Assessee Is A Firm And Filed Its E Return Declaring His Total Income At Rs 1 91 380 Wherein The Ao Found That The Gross Turnover Of The Assessee Is Of Rs 8 39 92 521 And For Not Filing The Tax Audit R Eport In Short Tar U S 44 Ab Of The Act Along With The Said Retur N Within Time The Ao Initiated The Penalty Proceedings U S 271 B Of T He Act By Issuing A Notice To The Assessee In Response To Such Notice The Assessee Filed A Letter On 03 11 2014 Along With A Declaration Of The Chartered Accountant And Copy Of Form No 3 Cd Stating Its Th E Ca Was Ita No 1394 Kol 2015 M S Jaychand Lal Bachhraj 2 Entrusted To Upload The Copy Of Tar But However The Ca Did Not Upload It As Its Staff Failed To Follow His Instru Ctions The Ao Found That The Submissions Of The Assessee In Not Filing The Tar Is A Mere Excuse And Being Not Satisfied With The Same He Im Posed A Penalty U S 271 B Of The Act 0 5 Of Rs 8 39 92 521 I E Rs 4 19 962 But However He Restricted The Same To Rs 1 50 00 0 4 Before The Cit A The Assessee Contended That Th E Assessee Obtained The Tar On 25 07 2013 Before Filing E Retu Rn On 29 07 2013 And Was In Impression That His Chartered Accountan T Would Upload The Same But Unfortunately The Staff Of The Ca S Tated To Have Been Not Uploaded The Same Within Time The Said Failure Is Not Intentional Nor Wanton And It Is A Bonafide Mistake And Sought To Cancel The Impugned Penalty Of Rs 1 50 000 5 The Cit A Considering The Submissions Of The As Sessee And The Ao And The Material Available On Record Observed Th At It Is The Responsibility Of The Assessee To Ensure In Filing The Tar Along With The Return Of Income On Or Before The Due Date Of F Iling Of The Same U S 44 Ab Of The Act Since The Assessee Failed To Do So The Cit A Confirmed The Impugned Penalty Imposed U S 271 B Of The Act 6 Before Us The Ld Ar Of The Assessee Submits That It Is The First Year That Filing Of Tar Is Came Into Effect Along With The Return He Also Submits That Though The Assessee Got His Audit Ed Accounts Before Filing Of The Return But However Due To N Egligence Of A Staff Of The Chartered Accountant Of The Assessee The Ta R Could Be Uploaded In Time The Staff Of The Ca Failed To Do So He Also Referred To Pages 23 25 Of The Paper Book And Argued That Th E Chartered Accountant Intimated The Assessee That He Will Uplo Ad The Tar And Further Asked The Assessee To Proceed The Filing Of Return Of Income Thereby The Assessee Was Impression That The Tar W Ill Be Uploaded Ita No 1394 Kol 2015 M S Jaychand Lal Bachhraj 3 In Time He Further Submits That There Is Reasonabl E Cause For Not Filing The Tar Along With The Return Of Income As M Andated U S 44 Ab Of The Act In Support Of The Contention The Ld A R Placed His Reliance On The Order Of Jaipur Bench Itat Jaipur In Ita N O 837 Jp 2016 A Y 2013 14 And Argued That The Tar Is Filed Belatedly Which Is Valid As The Assessee Got The Same In Time And Prayed To Can Cel The Impugned Penalty Imposed By The Ao And Confirmed By The Cit A 7 On The Other Hand The Ld Dr Has Relied On The O Rders Of The Authorities Below 8 Heard Rival Submissions And Perused The Relevant Material On Record It Is Not Disputed That The Assessee Did No T Get Its Accounts Audited Before The Due Date Of Filing Of The Return It Is Also Observed That The Assessee Obtained Tar Prior To The Date Of Filing Of Return I E On 25 07 2013 But Due To Negligence Of A Staff Of The Ca Of The Assessee The Tar Could Not Be Uploaded Along With The Return It Is Also Not In Dispute That The Ca By An Affidavit Dec Lared That He Undertook That He Will Upload The Same Before The D Ue Date Of Filing Of The Return But Unfortunately Due To Said Reas On The Tar Could Not Be Uploaded Within Time Specified U S 44 Ab Of The Act The Order Of The Itat Jaipur In The Case Of Supra On Which The Assessee Relied Upon We Find That The Issue In Hand Is Identical T O That Of Ita No 837 Jp 2016 In Our Opinion There Is Reasonable C Ause In Not Filing The Tar Within Time By The Assessee As It Was In Th E Bonafide Belief That Its Chartered Accountant Would Upload The Same Beside This This Is First Time Assessment That The Assessee Req Uired To File The Same Within Time As Specified U S 44 Ab Of The Act Relevant Finding Of Itat Jaipur In The Case Of Supra Is Reproduced Herein Below Hence The Penalty Should Not Be Levied In View O F The Above Facts And Circumstances Of The Case I Am Of The Considered V Iew That The Penalty Imposed By The Lower Authorities U S 271 B Of The Act On The A Ssessee Is Not Justifiable As The Audit Report Was To Be Uploaded By The Chartered Ac Countants Who Audited Her Books Of Account And The Assessee Was Low Educated And Sh E Had Under Bona Fide Belief That The Same Had Been Uploaded In The System Devel Oped By The Department In Such A Situation I Direct To Delete The Penalty Of Rs 1 50 Lacs Levied U S 271 B Of The Act Ita No 1394 Kol 2015 M S Jaychand Lal Bachhraj 4 9 In View Of Above The Imposition And Confirmatio N Of Penalty Of Rs 1 50 000 Is Not Justifiable In The Facts And C Ircumstances Of The Case Therefore The Imposition And Confirmation Of Penalty Of Rs 1 50 000 Is Hereby Cancelled Therefore The Grounds Raised By The Assessee Are Allowed On This Issue 10 In The Result The Appeal Of The Assessee I S Allowed Order Pronounced In The Open Court On 1 3 12 2017 Sd Sd Waseem Ahmed S S Viswanethra Ravi Accountant Member Judicial Member Dated 13 12 2017 Pp Sr P S Copy Of The Order Forwarded To 1 Appellant Assessee M S Jaychand Lal Bachhraj C O S L Kochar Advocate 86 Canning St Kolkata 1 2 Respondent The Ito Ward 3 1 Malda 3 The Cit A Kolkata 4 5 Cit Kolkata Dr Kolkata Benches Kolkata True Copy By Order Sr P S Head Of Office Itat Kolkata