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TMI Blog2019 (11) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... tember 2008 then it would be a reasonable cause for not filing the audited accounts but the assessee had taken more than 3 years to file the audited accounts, which in our view, is not in accordance with law. We may point out that the judgements relied upon by the ld. AR for the assessee are not applicable to the facts of the present case as the facts in all these decisions were entirely different. In the result the appeal of the assessee is required to be failed and accordingly we dismiss both the appeals. - ITA No.297/Agra/2016 & ITA No. 298/Agra/2016 - - - Dated:- 14-10-2019 - Shri Laliet Kumar, Judicial Member And Shri Dr. Mitha Lal Meena, Accountant Member ORDER PER SHRI LALIET KUMAR, J.M: The present appealsare being filed by the assessee feeling aggrieved by the order passed by the Commissioner appeal on 29.01.2016 and for the assessment year 2008-2009 and 2009-10 on the following ground : ITA NO 298/AG/16 on facts and circumstances the case the learned CIT appeal erred in confirming penalty ₹ 42151/under section 271 B in the legal and bad in law. ITA NO 297/AG/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of income before the last date of filing of the return of income. 6. In response to the letter of 22 September 2008 the learned assessing officer has written to the assessee vide letter dated 25 September 2008, that the Penalty under section 271B was initiated and Notice dated 27.12.2011 you are requested to make necessary arrangement (bring photocopy machine and papers ) for taking photocopy of impounded books of account/documents/vouchers from this office as early as possible. 7. The assessee vide letter dated 30 September 2008 had requested the assessing officer to extent the time of furnishing the audited books of account as the documents are already in custody of the assessing officer. 8. The above said backdrop it was submitted by the learned AR for the assessee that the assessing officer had issued a Notice dated 25.06.2012 . The Show Cause Notice was replied by the assessee vide his Reply dated 27.06.12. However, the submission advanced by the assessee did not find favour with the view held by the Assessing Officer who vide his Order dated 28.06.12 imposed a Penalty of ₹ 42,151/- holding that asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 20.01.2009and 10.02.2009request was made before the AO to issue copies of seized Books of Accounts and documents seized from the business premises of the Assessee. 13. Ld AR relied upon the following decisions in support of his case a. ITO Vs Babu Lal Jain reported as (2001) 251 ITR 0656 (P H) b. Raman Gandotra Vs Dy. CIT reported as (2015) 45 CCH 0297 c. Sameer Mavji Patel Vs. Deputy Commissioner of Income Tax, Mumbai reported as I.T.A No. 414/Mum/2012 vide order dated 31.01.2013 d. Staywell Hotels (P) Limited Vs CIT reported as (2005) 3 TMI 47 (M.P) (PBP , e. Hindustan Steels Ltd. Vs. State of Orissa reported in (1972) 83 ITR 26 (S.C.) f. CIT Vs Triumph International Finance (P) Limited reported in (2012) 251 CTR (Boni) 253 (PBP ) g. In the case of CIT Vs Tea King (2000) 153 CTR 0413 the Hon'ble Gujarat High Court had held that where Penalty under section 271B was already levied for preceeding Assessment Year in that event for immediately succeeding year no penalty for the same default cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken all these documents in the custody of the Deptt. Simultaneously proceedings if criminal nature carried on against the appellant by the food department and local administration, which made the appellant to abscond resulting in closure of the business activities. This ultimately resulted in delay in obtaining copies of seized material, which were necessary for completion of accounts and preparation of Audit Report. The learned ITO did not accept this as a reasonable cause became in his opinion he had engaged a C.A. who could perform these duties. The duty of a C.A. is to audit from the closed books of accounts and represent the case. He cannot be accepted to have total knowledge of entries which are essentially require for finalization of accounts. Even the documents are received by the appellant himself from the Deptt. and not by C.A. because appellant needs to identity what is needed. 15. Further he had also drawn our attention to paragraph 5 of the order passed by the Commissioner appeal to the following effect : I have considered the facts of the case, the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. In the present case it was the case of the assessee that the assessee had demanded the documents seized by the authorities during the course of survey as they were not provided by the authorities,therefore there was reasonable cause for not filling the audited accounts. further it was submitted that the police authorities were also searching for the assessee on account of some criminal matter and as such he was not in the town for getting the documents from the income tax authorities and therefore the accounts were not audited. 18. As mentioned in the assessment order, the assessee had got its account audited only on 25.3.2011 whereas the accounts were required to be audited up to 30.9.2008. Undoubtedly a request was made for supply of the document by the assessee on 22 September 2008 and the assessing officer in response thereto had asked the assessee to collect the documents by 25 September 2008. However despite the communication by the assessing officer asking the assessee to collect the documents after getting them photocopied the assessee chooses not to collect the documents and file the audited accounts. The assessee vide letter the date 30 September 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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