Shri N. Govindasamy, CHENNAI v. ITO, Villupuram

ITA 2116/CHNY/2016 | 2011-2012
Pronouncement Date: 26-10-2016

Appeal Details

RSA Number 211621714 RSA 2016
Assessee PAN ATXPG9897R
Bench Chennai
Appeal Number ITA 2116/CHNY/2016
Duration Of Justice 3 month(s) 13 day(s)
Appellant Shri N. Govindasamy, CHENNAI
Respondent ITO, Villupuram
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Bench Allotted A
Assessment Year 2011-2012
Appeal Filed On 13-07-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . . . ' #$ % &' ( [ BEFORE SHRI N.R.S. GANESAN JUDICIAL MEMBER AND SHRI D. S. SUNDER SINGH ACCOUNTANT MEMBER ] ./ I.T.A.NO.2116/MDS/2016 / ASSESSMENT YEAR : 2011-12 SHRI N. GOVINDASAMY NO.36 KATTUKOTTAI EMAPAIR KALLKURICHI POST VILLUPURAM 604 002 VS. THE INCOM E TAX OFFICER (I/C) WARD I(2) VILLUPURAM [PAN ATXPG 9897 R] ( )* / APPELLANT) ( + )* /RESPONDENT) / APPELLANT BY : SHRI J. PRABAKAR CA /RESPONDENT BY : SHRI SHIVA SRINIVAS JCIT / DATE OF HEARING : 29 - 09 - 2016 ! / DATE OF PRONOUNCEMENT : 26 - 10 - 2016 / O R D E R PER D.S. SUNDER SINGH ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-PUDUCHERR Y DATED 13.5.2016 FOR ASSESSMENT YEAR 2011-12. 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE LEVY O F PENALTY U/S 271B OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT). ITA NO.2116/16 :- 2 -: 3. DURING THE PROCEEDINGS THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 24.5.201 2 FOR ASSESSMENT YEAR 2011-12 ELECTRONICALLY AND THE ASSESSEE HAS N OT FURNISHED THE AUDIT REPORT BEFORE THE DUE DATE OF FILING THE RETU RN OF INCOME. THE DUE DATE FOR OBTAINING THE AUDIT REPORT WAS 30.9.20 11. SINCE THE ASSESSEE HAS NOT FILED THE AUDIT REPORT U/S 44AB B EFORE THE DUE DATE THE ASSESSING OFFICER HAS IMPOSED PENALTY OF ` 1 50 000/- U/S 271B OF THE ACT. THE ASSESSEE WENT ON APPEAL BEFORE THE C IT(A) BUT NOT SUCCEEDED. THEREFORE THE ASSESSEE IS IN APPEAL BE FORE THIS TRIBUNAL. 4. DURING THE APPEAL PROCEEDINGS BEFORE US THE LD. AR ARGUED THAT FOR THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE HAS MADE THE TOTAL TURNOVER OF ` 17.89 CRORES AND GOT AUDITED THE BOOKS OF ACCOUNT AS REQUIRED U/S 44AB OF THE ACT AND OBTAINED THE A UDIT REPORT ON 30.9.2011 ITSELF. THE LD. AR SUBMITTED THAT THE A SSESSEE HAS FILED THE RETURN OF INCOME ELECTRONICALLY AND THERE WAS NO MA NDATE IN THE INCOME-TAX ACT 1961 TO FILE THE AUDIT REPORT. THE REQUIREMENT WAS ONLY TO OBTAIN THE AUDIT REPORT. AS PER CBDT CIR CULAR 9 OF 2006 DATED 10.10.2006 THE ASSESSEE IS REQUIRED TO GET HIS BOO KS OF ACCOUNT AUDITED AND OBTAIN THE AUDIT REPORT AND TO FURNISH THE SAME IN ORIGINAL DURING THE ASSESSMENT PROCEEDINGS AND THE AO IS NOT ALLOWED TO INITIATE PENALTY U/S 271B FOR NOT FURNISHING THE A UDIT REPORT. HENCE ITA NO.2116/16 :- 3 -: THE LD. AR CONTENDED THAT THE CIT(A) IS NOT JUSTIFI ED IN CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271B O F THE ACT. 5. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL PLACED BEFORE US. FOR THE ASSESSMENT YEAR 2011-12 THE ASSESSEE HAS MADE A TURNOVER OF ` 17.89 CRORES AND THEREFORE REQUIRED TO GET ITS BOOKS OF ACCOUNT AUDITED. THE LD. AR SUBMITTED THA T THE ASSESSEE GOT THE BOOKS OF ACCOUNT AUDITED AND OBTAINED THE AUDIT REPORT BEFORE THE DUE DATE I.E 30.9.2011 NO EVIDENCE IS BROUGHT ON RECORD BY THE REVENUE TO CONTROVERT THE SUBMISSIONS MADE BY THE L D. AR REGARDING OBTAINING THE AUDIT REPORT. AS PER RULE 12(2) AND CIRCULAR NO.9 DATED 10.10.2006 THE REQUIREMENT ON THE PART OF THE ASS ESSEE IS TO OBTAIN THE AUDIT REPORT AND AUDIT REPORT NEED NOT TO BE FU RNISHED BEFORE THE INCOME TAX AUTHORITIES DURING THE ASSESSMENT PROCEE DINGS. IT WAS ALSO STATED IN CIRCULAR NO.9 THAT NO PENALTY U/S 2 71B SHALL BE INITIATED FOR NON-FURNISHING THE AUDIT REPORT. FOR READY REF ERENCE WE REPRODUCE HEREUNDER RULE 12(2) AND PARA 6 OF CBDT CIRCULAR NO .9 DATED 10.10.2006: RULE12(2): [(2) THE RETURN OF INCOME REQUIRED TO BE FURNISHED IN FORM SAHAJ (ITR-1) OR FORM NO. ITR-2 OR FORM NO. IT R-3 OR FORM SUGAM (ITR-4S) OR FORM NO. ITR-4 OR FORM NO. ITR-5 OR FORM NO. ITR-6 47 [OR FORM NO. ITR-7] SHALL NOT BE ACCOMPANIED BY A ITA NO.2116/16 :- 4 -: STATEMENT SHOWING THE COMPUTATION OF THE TAX PAYABL E ON THE BASIS OF THE RETURN OR PROOF OF THE TAX IF ANY CLAIMED TO HAVE BEEN DEDUCTED OR COLLECTED AT SOURCE OR THE ADVANCE TAX OR TAX ON SELF-ASSESSMENT IF ANY CLAIMED TO HAVE BEEN PAID OR ANY DOCUMENT OR C OPY OF ANY ACCOUNT OR FORM OR REPORT OF AUDIT REQUIRED TO BE A TTACHED WITH THE RETURN OF INCOME UNDER ANY OF THE PROVISIONS OF THE ACT:] PARA 6 OF CBDT CIRCULAR NO9/2006 DATED 10 TH OCTOBER2006: 6 . FOLLOWING CLARIFICATIONS ARE HEREBY ISSUED IN RESP ECT OF CERTAIN ISSUES ARISING FROM FURNISHING THE RETURNS IN ABOVE MENTIONED FORMS: (I) THE REPORT OF AUDIT UNDER SECTION 44AB IS NO T TO BE ATTACHED WITH THE RETURN. IT SHOULD NOT BE FURNISHED SEPARAT ELY ALSO BEFORE OR AFTER THE DUE DATE. HOWEVER AN ASSESSEE SHOULD GET THE REPORT OF AUDIT FROM AN ACCOUNTANT UNDER SAID SECTION BEFORE THE DUE DATE OF THE FURNISHING OF THE RETURN AND SHOULD FILL OUT TH E RELEVANT COLUMNS OF THESE FORMS ON THE BASIS OF SUCH REPORT. THE ASSESS EE SHOULD RETAIN THE REPORT WITH HIMSELF. IT MAY BE FURNISHED IN ORIGINA L DURING THE ASSESSMENT PROCEEDINGS. NO PENALTY UNDER SECTION 27 1B SHALL BE INITIATED OR LEVIED FOR NOT FURNISHING THE TAX AUDI T REPORT ON OR BEFORE THE DUE DATE. HOWEVER IF THE AUDIT REPORT HAS NOT BEEN OBTAINED BEFORE THE DUE DATE PROVISIONS OF SECTION 271B SHA LL BE ATTRACTED. 7. AS PER THE ABOVE CIRCULAR WE AGREE WITH THE LD. AR THAT THERE IS NO REQUIREMENT OF FURNISHING THE AUDIT REP ORT ON OR BEFORE THE DUE DATE BUT ONLY THE REQUIREMENT WAS TO OBTAIN THE AUDIT REPORT WHICH THE ASSESSEE HAS COMPLIED WITH. THE REVENUE HAS NOT MADE OUT CASE THAT THE ASSESSEE HAS NOT OBTAINED THE AUDIT R EPORT AS REQUIRED U/S 44AB OF THE ACT. THEREFORE WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND CANCEL THE PENALTY IMPOSED U/S 271 B OF THE ACT. ITA NO.2116/16 :- 5 -: 8. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH OCTOBER 2016 AT CHENNAI. SD/- SD/- ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( . . ' #$ ) (D.S. SUNDER SINGH) % / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 26 TH OCTOBER 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ) - . / DR 3. +/' / CIT(A) 6. -01 / GF