SUJATA TRADING (P.) LTD. Vs. INCOME TAX OFFICER-8(3)(2)
LAWS(IT)-2014-7-46
INCOME TAX APPELLATE TRIBUNAL
Decided on July 09,2014

Sujata Trading (P.) Ltd. Appellant
VERSUS
Income Tax Officer -8(3)(2) Respondents

JUDGEMENT

B.R.Baskaran, Member (A) - (1.) THE appeal filed by the assessee is directed against the order dated 23.10.2012 passed by Ld. CIT(A) -18, Mumbai and it relates to the assessment year 2009 -10. The assessee is aggrieved by the decision of Ld. CIT(A) in confirming the penalty of Rs. 1.00 lakh levied u/s. 271B of the Act.
(2.) THE facts relating to the issue cited above are stated in brief. The assessee company filed its return of income through E -filing process for the year under consideration on 28 -09 -2009. There is no dispute that the turnover of the assessee company has exceeded the thresh hold limit prescribed u/s. 44AB of the Act and hence the assessee was required to get its account audited as per the provisions of sec. 44AB of the Act. In the return of income filed through E -filing process, the assessee is required to answer following question: - - "Are you liable for audit under section 44AB" If Yes furnish following information: - - a. Name of the auditor signing the tax audit. b. Membership No. c. Name of the auditor d. Permanent Account Number (PAN) of the proprietorship/ e. Date of audit report." The Assessing Officer noticed that the assessee has answered the above said question as "NO" and consequently it did not furnish the details relating to the auditor. Hence the AO took the view that the assessee did not get its accounts audited u/s. 44AB of the Act and accordingly he initiated penalty proceedings u/s. 271B of the Act. In response thereto, the assessee company submitted that it has got the audit report u/s. 44AB of the Act on 01.09.2009 and the by inadvertent mistake, the answer was wrongly marketed as "NO". It was further submitted that the details required to be given in Tax audit report are also contained in the "E -return" and the assessee has duly furnished all those details. The assessee also furnished hard copy of Tax audit report along with its reply. Accordingly the assessee company submitted that it was only a typographical error and there was no malafide intention. Accordingly it was prayed that the penalty proceedings may be dropped. The AO was not convinced with the above said explanations. Since the assessee did not furnish the details of the auditor in the E -return, the AO held that the assessee has failed to get the accounts audited u/s. 44AB of the Act before filing return of income. Accordingly he levied a penalty of Rs. 1.00 lakh u/s. 271B of the Act. The Ld. CIT(A) also confirmed the penalty and hence the assessee has filed this appeal before us. Shri M.B. Agarwal, Chartered Accountant appeared before us on behalf of the assessee. He submitted that he has conducted the Statutory audit of the assessee company under the Companies Act and has also given the tax audit report u/s. 44AB of the Act. He submitted both the Statutory audit report and tax audit report was given on the very same date, viz., 01 -09 -2009. He further submitted that the assessee company has filed its return of income through "E -filing" procedure. He submitted that, as per instructions given for E -filing, the assessee company is not required to attach any document along with E -return and hence the assessee was not in a position to furnish the tax audit report along with the return of income. He further submitted that the details that are given in the Tax audit report are required to be given in "Part A -O1" of the E -return. Inviting our attention to the copy of E -return, the Ld. Counsel submitted that the assessee has furnished all those details in the E -return, some of which are quantitative details, depreciation details, amount to be disallowed u/s. 40 etc. The Ld. A.R. submitted these facts prove that the assessee has obtained tax audit report before the due date and also before filing return of income. He submitted that the E -return was filled up and uploaded by a clerical staff and he has inadvertently filled up the relevant column with the answer "NO". The Ld. A.R further submitted that he, in his capacity of the auditor, has given an affidavit to the effect that he has given the tax audit report on 01 -09 -2009. Accordingly he submitted that the impugned penalty should not be sustained, since the lapse occurred due to the inadvertent mistake committed by a clerical staff.
(3.) ON the contrary, the Ld. D.R submitted that the assessee, besides answering the relevant question negatively, has also failed to furnish the details of the auditor. Hence, the explanations given by the assessee is hard to believe and accordingly prayed that the penalty should be sustained.;


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