2019 (2) TMI 2109 - AT - Income Tax

Denial of Benefit of section 50B - non- furnishing of audit report - HELD THAT - As assessee has applied concessional tax u/s 50B in the return of income. It is a fact that audit report was not filed at the time of filing of return of income in the AY under consideration. There is no possibility that assessee is expected to file the report along with the return of income, when there is provision to file with the return of income. As long as, it is submitted at the time of assessment, it is as if filed along with the return of income. AO is expected to accept the report when it is filed at the time of assessment. The claim of the assessee can be submitted only at the time of assessment when the case is selected for scrutiny. AO has to consider the submissions of the assessee when it is filed at the time of assessment. Even otherwise, the filing of report is curable even if it is not submitted along with the return of income. This cannot be the reason for the AO to deny the benefit which is lawfully eligible. Therefore, we direct the AO to accept the audit report and allow the benefit u/s 50B to the assessee. Accordingly, grounds raised by the assessee on this issue are allowed.

Summary

Issues:
1. Allegation of non-compliance with section 50B of the Income Tax Act due to failure to file Form 3CEA.
2. Discrepancy in computing gains on Slump sale at 30% instead of the special rate of 20%.
3. Initiation of penalty proceedings under section 274 r.w.s 271 of the Act.

Analysis:
1. The appeal was filed against the order of CIT(A) concerning the assessment year 2013-14. The assessee claimed a gain of Rs. 20 lakhs from the sale of old furniture as part of a slump sale. However, the Assessing Officer (AO) disallowed the claim as the assessee did not file Form 3CEA along with the return of income, as required by section 50B(3) of the Act. The AO imposed tax at a higher rate of 30% instead of the claimed 20%. The CIT(A) upheld the AO's decision. The Tribunal noted that the audit report was not filed at the time of return filing, but it was submitted during the assessment proceedings. The Tribunal held that the failure to file the report along with the return was a technical default and curable. The Tribunal directed the AO to accept the audit report and allow the benefit under section 50B to the assessee, thereby allowing the appeal on this issue.

2. The assessee contended that the computation of gains on the slump sale at 30% instead of the special rate of 20% was erroneous. The Tribunal observed that the AO's insistence on the higher tax rate was based on the non-compliance with Form 3CEA filing. Since the Tribunal allowed the benefit under section 50B, the issue of computing gains at 30% became moot, and the appeal was decided in favor of the assessee on this ground.

3. The assessee raised a ground regarding the initiation of penalty proceedings under section 274 r.w.s 271 of the Act. The Tribunal deemed this issue premature and did not adjudicate upon it, indicating that the matter was not ripe for consideration at that stage. Consequently, this ground was not addressed in the judgment, and the appeal was allowed in favor of the assessee.

In conclusion, the Tribunal allowed the appeal filed by the assessee, directing the AO to accept the audit report and grant the benefit under section 50B. The issue of computing gains at a higher rate was resolved by accepting the assessee's claim, and the premature issue of penalty proceedings was not deliberated upon.