Neelettu Constructions, Kottayam v. ACIT, Kottayam

ITA 534/COCH/2009 | 2004-2005
Pronouncement Date: 30-12-2011 | Result: Allowed

Appeal Details

RSA Number 53421914 RSA 2009
Assessee PAN AADFN8589Q
Bench Cochin
Appeal Number ITA 534/COCH/2009
Duration Of Justice 2 year(s) 1 month(s) 20 day(s)
Appellant Neelettu Constructions, Kottayam
Respondent ACIT, Kottayam
Appeal Type Income Tax Appeal
Pronouncement Date 30-12-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-12-2011
Date Of Final Hearing 15-12-2011
Next Hearing Date 15-12-2011
Assessment Year 2004-2005
Appeal Filed On 09-11-2009
Judgment Text
1 ITA NO.534-COCH-2009 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHI BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI SANJAY ARO RA (AM) I.T.A. NO.534/COCH/2009 (ASSESSMENT YEAR 2004-05) NEELETTU CONSTRUCTIONS VS ASSIST.COMMISSIONER OF INCOME-TAX SASTRI ROAD KOTTAYAM CIR.1 KOTTAYAM PAN : AADFN8589Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KI JOHN RESPONDENT BY : MS VIJAYAPRABHA DATE OF HEARING : 15-12-2011 DATE OF PRONOUNCEMENT: 30-12-2011 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-IV KOCHI DATED 25-08-2009 CONFIR MING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271B OF THE ACT FOR THE A SSESSMENT YEAR 2004-05. 2. SHRI K.I JOHN LD.REPRESENTATIVE FOR THE ASSESSE E SUBMITTED THAT THE ASSESSING OFFICER LEVIED PENALTY U/S 271B OF THE AC T. ACCORDING TO THE LD.REPRESENTATIVE THE DUE DATE FOR FILING OF THE A UDIT REPORT WAS 30-10-2004. HOWEVER THE ASSESSEE OBTAINED THE AUDIT REPORT ON 30-12-2004 AND FILED THE SAME ALONG WITH THE RETURN OF INCOME ON 30-12-2004. ACC ORDING TO THE LD.REPRESENTATIVE AT THE END OF THE FINANCIAL YEAR THE ACCOUNTANT WHO WAS CARRYING OUT THE DATA ENTRY OPERATION LEFT THE FIRM WITHOUT ANY NOTICE. THE ACCOUNTANT HAS NOT GIVEN THE PASS WORD BEFORE LEAVI NG. THEREFORE THE ORIGINAL DATA FOR THE SIX MONTHS COULD NOT BE ENTERED IN THE COMPUTER THEREFORE THERE WAS A DELAY OF TWO MONTHS IN GETTING THE AUDIT REPORT. ACCORDING TO THE 2 ITA NO.534-COCH-2009 LD.REPRESENTATIVE THIS DELAY IS A REASONABLE CAUSE WITHIN THE MEANING OF SECTION 273B OF THE ACT. 3. ON THE CONTRARY MS. VIJAYAPRABHA THE LD.DR SUB MITTED THAT THE ASSESSEE HAS TO GET THE ACCOUNTS AUDITED AS REQUIRED U/S 44A B OF THE ACT AND FURNISH THE SAME BEFORE THE DUE DATE PROVIDED UNDER THE ACT. A CCORDING TO THE LD.DR THE ASSESSEE COULD NOT GET THE AUDIT REPORT WITHIN THE DUE DATE PRESCRIBED UNDER THE ACT AND IT WAS ALSO FILED BEYOND THE DUE DATE PROVI DED U/S 139(1) FOR FILING RETURN OF INCOME. THEREFORE THE ASSESSING OFFICER HAS RI GHTLY LEVIED THE PENALTY U/S 271B OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY THE DUE DATE FOR GETTING THE ACCOUNTS AUDITED IS 30-10-2004. IN FACT THE ASSESSEE OBTAI NED THE AUDIT REPORT ONLY ON 30- 12-2004. THEREFORE THERE WAS A DELAY OF TWO MONTH S. IT IS ALSO A FACT THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME ALONG WITH THE AUDIT REPORT ON 30-12-2004. THE REVENUE HAS NOT DISPUTED THE FACT THAT THE ACCO UNTANT LEFT THE FIRM WITHOUT NOTICE AND WITHOUT DISCLOSING THE PASS WORD FOR ENT ERING THE DATA IN THE COMPUTER. THE ONLY CONTENTION OF THE LD.DR IS THAT THIS CANNO T BE A REASONABLE CAUSE. THE FACT REMAINS IS THAT THE ACCOUNTANT LEFT THE JOB WI THOUT INTIMATION AND WITHOUT PASSING ON THE PASS WORD. SINCE THE ACCOUNTANT OF THE FIRM LEFT THE JOB SUDDENLY WITHOUT GIVING PASS WORD TO THE ASSESSEE THE ENTIRE PROCESS OF UPDATING THE ENTRY IN THE COMPUTER COULD BE JEOPARDIZED. THEREFORE T HE ASSESSEE HAS TO NECESSARILY ARRANGE FOR ANOTHER DATA OPERATOR WHO HAS THE KNOWL EDGE OF ACCOUNTS AND UPDATE THE ENTRIES AND GET THE SAME AUDITED. IN VIEW OF T HE FOREGOING IN OUR OPINION THE DELAY OF TWO MONTHS IS BEYOND THE CONTROL OF THE AS SESSEE. THEREFORE THE ASSESSEE WAS PREVENTED BY SUFFICIENT CASE. SINCE THERE WAS SUFFICIENT CAUSE FOR NOT GETTING THE BOOKS OF ACCOUNTS AUDITED IN OUR OPINION THER E WAS A REASONABLE CAUSE WITHIN THE MEANING OF SECTION 273B OF THE ACT. MOREOVER THE ASSESSEE ADMITTEDLY HAS FILED THE RETURN OF INCOME ON 30-12-2004 ALONG WITH THE AUDIT REPORT. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT FILING OF THE AUDIT R EPORT IS MANDATORY. HOWEVER TIME 3 ITA NO.534-COCH-2009 LIMIT FOR FILING THE AUDIT REPORT IS DISCRETIONARY. THE AUDIT REPORT IS ONLY TO ASSIST THE ASSESSING OFFICER TO COMPUTE THE CORRECT INCOME OF THE ASSESSEE. IN THIS CASE THE ASSESSEE FILED THE AUDIT REPORT ALONG WITH THE RETURN OF INCOME. THEREFORE NO PREJUDICE IS CAUSED TO THE REVENUE IN COMPLETING TH E ASSESSMENT. IN THIS VIEW OF THE MATTER THIS TRIBUNAL IS OF THE OPINION THAT TH IS IS NOT A FIT CASE FOR LEVY OF PENALTY. THEREFORE WE HEREBY DELETE THE PENALTY L EVIED U/S 271B OF THE ACT AT RS. 1 LAKH FOR THE ASSESSMENT YEAR 2004-05. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER 2011 (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM DT : 30 TH DECEMBER 2011 PK/ COPY FORWARDED TO: 1. NEELETTU CONSTRUCTIONS SASTRI ROAD KOTTAYAM 2. ASSIST.COMMISSIONER OF INCOME-TAX CIR.1 KOTTAYAM 3. THE COMMISSIONER OF INCOME-TAX(A)-IV KOCHI 4. THE COMMISSIONER OF INCOME-TAX KOTTAYAM 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN