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M/s. Laxmi Vayaapar Pvt. Ltd. Versus Income-tax Officer, Wd-3 (4) , Kolkata

2016 (7) TMI 617 - ITAT KOLKATA

Levy of penalties u/s. 271B and 271F - non filing of tax audit report and non filing of return in time - Held that:- We find that reasons for delay adduced by the assessee does not constitute a good and reasonable cause. It is very unlikely that the assessee being a company would be controlled by the Board of Directors who had not bothered to understand whether the income tax return of the company has been filed in time. It is very unlikely that they would remain silent with regard to discharge .....

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anethra Ravi, JM For The Appellant: Shri Partha Chowdhury, AR For The Respondent: Shri Rajat Kumar Kureel, JCIT, Sr. DT ORDER Per Shri M. Balaganesh, AM: This appeal by assessee is arising out of order of CIT(A)-XIV, Kolkata vide appeal No. 311/CIT(A)-XIV/2011-12 dated 28.10.2013. Penalties under dispute were imposed by ITO, Ward-3(4), Kolkata u/s. 271B and 271F of the Income tax Act, 1961 (hereinafter referred to as the Act ) for AY 2005-06 vide his separate orders dated 09.10.2007 and 03.10.20 .....

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income was 31.10.2005. The assessee explained the following reasons for the delay in filing the return of income and delayed filing of tax audit report for AY 2005-06: The real fact to delay in filing Income Tax Return as well as Tax Audit Report u/s 44AB before the Income Tax Department already informed to your department and again we informed you that there is serious miscommunication I misrepresentation of our Accountant. We informed by our Accountant that the books of accounts for the year .....

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and comes to our knowledge that there is no copy of last year return as it was not filed Then we had no other alternative without submitting the last year return and finally we submitted our ITR and Tax Audit Report for the A. Y. 2005-2006 on 28.09.2006 i.e. at the time of submitting return for the A. Y. 2006-2007. Sir, our mistake was we trusted our Accountant. We hoped that return was filed as we signed the relevant documents like copy of Balance sheet, ITR Form etc. in time. Again we informe .....

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return in time thereafter i.e. from A. Y 2006-2007 to till A. Y. 2013-2014. We inform you that never we done such type of mistake in future. We also inform you that our accounts already declare NPA by the Bank as per RBI guideline and court case was proceeding against our company with Debts Recovery Tribunal No. -1, Kolkata vide case no. OA 478 of 2012. We are enclosing herewith the relevant documents for your perusal. 4. The Ld. AO did not convince with the reply given by the assessee proceede .....

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g facts and circumstances: 02. That the Ld. CIT(A)-XIV Kolkata passed his order without considering any single point of our prayer. We explained him at the time of hearing that we audited our books of accounts in time. As we miscommunicated by our Accountant regarding submission of Tax Audit Report as well as Income tax Return, there is delay to file the same. 03. That Ld. CIT(A)XIV, Kolkata not considering in his mind that this is not the amount of Income Tax. This is the amount of penalty. He .....

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s erstwhile Accountant which cannot be doubted with. In response to this, the Ld. DR argued that it is very unlikely that assessee having claimed to have complied with ROC formalities in time and not complied with income tax formalities. He placed reliance on the decision of Hon ble Kerala High Court in the case of Metro Agencies Vs. DCIT reported in (2014) 45 Taxmann.com 97 (Ker) in support of his contentions. 5. We have heard rival submissions and perused the material available on record. The .....

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ore Registrar of Companies in time (as claimed by the assessee) and any evidence could be furnished in that regard, the Ld. AR filed certain documents which are not relevant for the year under appeal. We find that the case law relied on by the Ld. DR i.e. Metro Agencies, supra strengthens the case of the revenue. In the said decision it was held as under: 5. Ultimately, one has to see whether the cause shown by an assessee would constitute a good cause for the non compliance in order to avoid hi .....

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d to show during what spells of 2005 the accountant was on leave and for how many days. There is also nothing on record to show whether there is any other assistant to the accountant who said to have been on leave so far as the assessee's partnership firm. Apart from that, the cause for the delay is the absence of accountant on various dates, therefore, they could not finalise the accounts in order to file the audit report in time. There is nothing on record to show that as and when the said .....

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to finalise accounts of the assessee's business with the assistance of any other person or not would be the test to know whether there is sufficient or reasonable cause. In the absence of engaging any other accountant to complete the accounts and then submit the audit report in time, we fail to understand how the judgment relied upon by learned counsel for the appellant would come to his assistance. In the case referred to above, it was a non completion of audit of the accounts of a branch .....

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