Koyna Glass Works P Ltd., 2/C Lawerence & Mayo House, 276 Dr. D N Road Road, Mumbai 400 001 Vs. ITO Ward 1 (2)(2), Mumbai
October, 23rd 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "A", MUMBAI
Before Shri G S Pannu, AM & Shri Sanjay Garg, JM
[ [ / Assessment Year : 2000 - 01
Koyna Glass Works P Ltd., ITO Ward 1 (2)(2),
2/C Lawerence & Mayo House, Mumbai
276 Dr. D N Road Road, Vs
Mumbai 400 001
( /Appellant) (×/Respondent)
Appellant By : Shri Vimal Punmiya
Respondent By : Shri E Shridhar
Date of Hearing :28.07.2015. Date of Pronouncement :21.10.2015
Per Sanjay Garg, Judicial Member:
The present appeal filed by the assessee is directed against the order
of the CIT(A) -2, Mumbai, dated 03.03.2011 pertaining to A.Y. 2000-01.
2. The assessee in this appeal has agitated the levy of
penalty under section 271B of the Income tax Act for non compliance of the
provisions of section 44 of I.T.Act by the Assessing Officer holding that the
assessee had failed to get his accounts audited in respects of previous year
despite its turnover of more than Rs.6 Cores.
Koyna Glass Pvt. Ltd.
3. The learned AR of the assessee, at the outset, has stated that in this
case, the Assessing Officer has failed to take necessary prior approval from
Joint Commissioner of Income Tax as per the provisions of section 274 of
the I.T.Act. The learned DR could not disprove or deny this fact on the file.
The penalty levied by the lower authorities is thus bad in law as the same
being hit by the provisions of section 274 of the Act as the amount of
penalty exceeds twenty thousand rupees and the Assessing Officer was
required to get the prior approval of the Joint Commissioner before
proceeding to levy the penalty under section 271B of the Act. The case is
squarely could by the order of the co-ordinate Benches of this Tribunal
dated 20.05.2015 in the case of M/s. Precision Shears & Knives Pvt. Ltd. for
A.Y. 2000-01, wherein it has been held as under:
"8.1 A perusal of the above section clearly shows that the AO
had to take permission from the Joint Commissioner before
levying the penalty as the amount exceeded Rs.10,000/-. There
is nothing in the order of the penalty which could show that the
ITO has taken prior permission from the Joint Commissioner.
When a statute required a thing to be done in a certain manner,
it shall be done in that manner alone. When a particular
authority has been designated to record his satisfaction on any
particular issue, then it is that authority along who should apply
his independent mind to record his satisfaction and satisfaction
so recorded should be independent and not borrowed or dictated
satisfaction. Considering the facts of the case, in the light of the
provisions of Sec. 274 of the Act, we have no hesitation to hold
that the AO has levied penalty in contravention to the provisions
of Sec. 274 of the Act and, therefore, the order of the First
Koyna Glass Pvt. Ltd.
Appellate authority is liable to be set aside. We direct the AO to
delete the penalty so levied."
In view of the above decision of the Tribunal, the penalty levied by
the lower authorities is not sustainable in the eyes of law and the same is
accordingly ordered to be deleted.
4. In the result, the appeal of the assessee is hereby allowed.
Order pronounced in the open court on 21st October, 2015.
(G S PANNU) (SANJAY GARG)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai; Dated : 21 October, 2015.
/Copy of the Order forwarded to :
1. /The Appellant.
2. × / The Respondent.
3. () / The CIT(A), Mumbai.
4. / CIT
5. , , / DR, `A' Bench, ITAT,
/ BY ORDER,
× //True Copy//
/ (Dy./Asstt. Registrar)
, / ITAT, Mumbai