TaxTMI 
TaxTMI 
2023 (8) TMI 642
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....griculture crop society. The Notices of fixation by the Ld. CIT (Appeals), NFAC, Delhi did not come to the knowledge of the Appellant, and therefore, proceeding could not be attended. Prayed to cancel penalty. - Rs. 62,370/- 2. That the Ld. CIT (Appeals), NFAC, Delhi erred in confirming the penalty levied u/s 271B by the Ld. Assessing Officer at Rs. 62,370/-. Prayed that there is no delay on the part of the Appellant. The statutory auditor was not appointed timely by the Registrar of Cooperative Society which was not in the hands of the Appellant. There is reasonable cause u/s. 273B for delay, the penalty levied kindly be cancelled. 3. At the outset, it was pointed out by the Registry that the appeal of the assessee in the present case is time barred having delay of 24 days. With regard to delay, the Ld.AR of the assessee submitted that the assessee society is situated at a remote village, viz. Dulla, having population of approximately 1000. The employees of the society are not well-versed with the system of filing appeal as well as the taxation law, they are not much educated. An affidavit also submitted in this regard, duly signed by Shri Dhani Ram Thakur, S/o Shri Bundel Sing....
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....ot considered by the Ld.CIT(A) and has passed an ex parte order. 5. At the inception, the Ld.AR submitted that the case of the assessee is squarely covered by the decision of the ITAT, Raipur Bench, Raipur, in the case of Gramin Sewa Sahakari Samiti Maryadit v. ITO-1(2), Raipur, in ITA No.22/RPR/2022 for the AY 2014-15, order dated 21.04.2023. The observations of the ITAT in the said order, are re-produced as under: 8. We have considered the rival contentions and perused the orders of the authorities below along with the relevant documents placed on record. Before us, the ld. AR of the assessee has filed paper book containing the documents relating to the letter of Jila Sahakari Kendriya Bank Maryadit, Raipur dated 17.10.2014 appointing the Tax Auditor, audited accounts, tax audit report dated 14.02.2015 and copy of computation & acknowledgement. It was also submitted by the ld. AR that the explanation of the assessee has not been considered in the proceeding before the ld. CIT(A). It is fairly admitted that the statutory auditor is appointed by the Registrar of Co-operative Societies and not by the assessee. This being so, we are of the view that the assessee has sufficient and....
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....1-MAR-2013 (b) the audited balance sheet as at 31-MAR-2013; and (c) documents declared by the said Act to be part of, or annexed to, the profit and loss account and balance sheet. 2. The statement of particulars required to be furnished under section 44AB is annexed herewith in Form No. 3CD. 3. In my opinion and to the best of my information and according to examination of books of account including other relevant documents and explanations given to me, the particulars given in the said Form No. 3CD are true and correct subject to the following observations/qualifications, if any: Qualification Type Observations/Qualifications Nil For SUNIL and SANJAY Chartered Accountants (Firm Regn No.: 006144S) (ALOKJAIN) PARTNER Membership No: 400264 Place :Raipur Date: 21/11/2014 7. In support of his contention, the assessee is relied upon various case laws, which are as under: i) Kendrapara Credit Co-operative Society Ltd., ITA No.87/CTK/2021, order dated 07.06.2022, wherein it is held as under :- 8. We have considered the rival submissions. A perusal of the facts as recorded by the AO shows that the delay in submitting the audit report was on account of dela....
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.... any mala fide intention, but it is venial technical breach and for this reason, penalty u/s. 271B of the Act, cannot be levied. This principle is supported by the decision of the Hon'ble jurisdictional High Court in the case of P.Senthil Kumar v. PCIT reported in 416 ITR 336, where an identical issue had been considered by the Court and held that for venial technical breach without any mala fide intention, penalty cannot be levied. The ITAT Cochin Bench in ITA No.411/Cochin/2018 vide order dated 05.02.2019 had held that once audit report has been made available before the AO, when the assessment proceedings were completed, then, there is no reason for levy of penalty. 8. In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that reasons given by the assessee for not filing tax audit report within due date comes under reasonable cause as provided u/s. 271B of the Act, and thus, the AO is erred in levying penalty u/s. 271B of the Act. Hence, we direct the AO to delete penalty levied u/s. 271B of Act. iii) Arambagh Co-op Agricultural Marketing Society Ltd., ITA No.804&8056/Kol/2014, order dated 28.02.2017, wherein the Tr....
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.... for statutory audit. This appointment is not in the control of the assessee. It is only then after that the assessee appoints tax auditor. The assessee filed the tax audit report immediately after obtaining the same from its Tax Auditor in Form No.3CA on 14-09- 2009. We find that the issue on hand is similar to that case decided by order dated 03-06-2016 by the Coordinate Bench of this Tribunal passed in ITA No.2396/Kol/2013 in the case of supra. Following the same, we are of the view that it is not a fit case to impose ITA Nos. 804 & 805/Kol/14-A-JM M/s. Arambagh Co-op Agrl. Mktg. Society Ltd 4 the penalty of Rs. 1,00,000/- u/s. 271B of the Act. Therefore, we cancel the penalty imposed by the AO and confirmed by the CIT(A). Therefore, the ground raised by the assessee is allowed. iv) Ahmedabad Co-operative Dept. Stores, [2001] 73 TTJ 784 (Ahmedabad-ITAT), wherein the Tribunal has held as under :- 5. I have given careful thought to the rival submissions advanced before me. There is no dispute that assessee is a cooperative society and its activities are governed by Gujarat Cooperative Societies Act, 1960. The accounts of the assessee are required to be audited by a special aud....
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....y Registrar, Co-operative Societies and since auditor was not appointed by Registrar within stipulated time, audit report could not be submitted in time - Assessing Officer rejected assessee's explanation and imposed penalty upon it - Whether any penalty could be levied upon assessee - Held, no vi) Iqbalpur Cooperative Cane Development Union Ltd. [2013] 218 Taxman 70 (Uttarakhand)(Mag.), wherein the Hon'ble Uttarakhand High Court has held as under :- Section 44AB, read with sections 271B and 273B of the Income-tax Act, 1961 - Tax audit [Appointment of auditor] - Assessee was a cooperative society, registered under U.P. Co-operative Societies Act, 1965 - Accounts of assessee was required to be audited in accordance with section 64 of U.P. Co-operative Societies Act - Since assessee's account was not audited within stipulated date, penalty under section 271B was imposed on assessee - Tribunal granted relief to assessee under section 273B holding that assessee established that appointment of auditor was not within his domain and, it was also not within his domain to have auditor to be appointed by Registrar or such person as appointed by State Government, to complete audit....