Tax Appeal v. Assistant Commissioner Of Income Tax” Reported In (2003) 183 Ctr (Bom.) 409

Tax Appeal No.15/04 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD TAX APPEAL NO.15 OF 2004 Court's or Judge's orders Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions andRegistrar's orders. Mr.S.P.Shah, advocate holding for Mr.P.V.Barde, advocate for the appellant. Mr.Alok Sharma, Standing counsel for Respondents. CORAM : S.V.GANGAPURWALA & A.I.S.CHEEMA,JJ. Date : 24.03.2015. PER COURT : 1.Heard. 2.Imposition of penalty of Rs.1,00,000/- (Rupees one lac) U/s 271B of the Income Tax Act, for late submission of audit report is assailed in the present appeal. 3.Mr.Shah, learned counsel for the appellant states that on 3.8.1994 books of account of the appellant for the period 1.4.1993 to 31.3.1994 and 1.4.1994 to 30.8.1994 were impounded U/s 133A of the Income Tax Act. The copies of the books of account were provided by the Department in loose papers in September 1994. Thereafter, for the financial year 1993-1994 audit was completed on 30.6.1996. For the delay caused in submitting the audit report, penalty of Rs.1,00,000/- (Rupees one lac) was levied U/s 271B of Tax Appeal No.15/04 the Income Tax Act. The said penalty amount is paid by the appellant. Thereafter for the financial year 1994-95 the audit was completed in November 1996. For the same again a penalty of Rs.1,00,000/- is imposed U/s 271B of the Income Tax Act. The learned counsel submits that various reasons were given by the appellant, such as non-availability of the books of accounts, non-availability of accountant, ailment, however, the same is not considered. The learned counsel further submits that unless the audit of the previous year was completed,the audit of the subsequent year could not have been undertaken. When penalty is already imposed for late submission of audit report for the preceding year, again for the next year the penalty could not have been imposed. Learned counsel relies on the judgment of the Division Bench of this Court in a case of “Shri Swastik Steels (P) Ltd., Vs. Assistant Commissioner of Income Tax” reported in (2003) 183 CTR (Bom.) 409. 4.Mr.Alok Sharma, learned counsel for Respondent submits that the appeal can only be entertained on a substantial question of law and whether there was a sufficient cause or not is a finding of fact which may not be open for consideration in the present appeal. The learned counsel further submits that it is not a case of double joepardi as audit of each year is independent. The learned counsel relies on the judgment of the learned Single Judge of Gujarat High Tax Appeal No.15/04 Court in a case of “Commissioner of Income Tax Vs. J.L.Trivedi and Sons” reported in (1994) 210 ITR 112 (GUJ) and another judgment of the learned Single Judge of Allahabad High Court in a case of “Commissioner of Income Tax Vs. Hind Grain Suppliers” reported in (1988) 171 ITR 681. 5.We have considered the submissions canvassed by the learned counsel. There can not be any dispute with the proposition that the present appeal can be considered only on substantial question of law. We are not inclined to accept the contention of the appellant regarding the ground of non-availability of accountant, ailment etc. 6.It is not disputed that the books of account of the appellant for the period 1.4.1993 to 31.3.1994 and 1.4.1994 to 30.8.1994 were impounded by the Department and were taken in their custody. The copies of the same were given only in September 1994 and thereafter audit for financial year 1993-94 is completed on 30.6.1996. For late submission of the audit, penalty of Rs.1,00,000/- (Rupees one lac) is imposed by the Department. The same is paid by the appellant assessee. The Division Bench of this Court in a case of “Shri Swastik Steels (P) Ltd. Vs. Assistant Commissioner of Income Tax” referred supra has held as under : 6.It is not disputed that the books of account of the appellant for the period 1.4.1993 to 31.3.1994 and 1.4.1994 to 30.8.1994 were impounded by the Department and were taken in their custody. The copies of the same were given only in September 1994 and thereafter audit for financial year 1993-94 is completed on 30.6.1996. For late submission of the audit, penalty of Rs.1,00,000/- (Rupees one lac) is imposed by the Department. The same is paid by the appellant assessee. The Division Bench of this Court in a case of “Shri Swastik Steels (P) Ltd. Vs. Assistant Commissioner of Income Tax” referred supra has held as under : “In the circumstances, we uphold the imposing of penalty of Rs.1 lac under S. 271B for the asst. year 1992-93. However, since Tax Appeal No.15/04 penalty is being imposed for 1992-93 at Rs.1 lac in the facts and circumstances of the case, there will be no penalty for delay in not obtaining the report in time for 1993-94 as the assessee could not have obtained the report for asst. yr. 1993-94 without completing the accounts for the earlier asst. yr. 1992-93. Accordingly, we uphold the order of the Tribunal for asst. yr.1992-93 vide IT Appeal No.257 of 2001 imposing penalty of Rs.1 lac. However, for asst. yr. 1993-94, we set aside the order of the Tribunal, imposing penalty vide IT Appeal No.238 of 2001.” 7.The present matter is based on similar set of facts. Here also the penalty is also imposed for late submission of audit for the financial year 1993-94 and it is only on completion of the audit of 1993-94, the audit of financial year 1994-95 is completed. The ratio laid down by the Division Bench of this Court in a case of Shri Swastik Steels (P) Ltd. Vs. Assistant Commissioner of Income Tax” squarely applies in the present matter. 8.In light of the above, the impugned judgment and order is quashed and set aside. The appeal is accordingly allowed. No costs. (A.I.S.CHEEMA,J.)(S.V.GANGAPURWALA,J.) Dt..24.03.2015. asp/office/Taxapp15.04 5 Tax Appeal No.15/04