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Shamlaji Pradesh Kelavani Mandal At & PO: Shamlaji Dist: Sabarkantha Vs ADIT (E), S.K.Circle, Himmatnagar
December, 30th 2013
                   AHMEDABAD "B" BENCH

            Before: Sri D.K Tyagi, Judicial Member
           and Shri T.R. Meena, Accountant Member

                     ITA No. 2091/Ahd/2012
                    Assessment Year 2008-09

     Shamlaji Pradesh Kelavani          ADIT (E),
     Mandal At & PO:                    S.K.Circle,
     Shamlaji Dist:            Vs       Himmatnagar
     Sabarkantha                        (Respondent)
     PAN: AAETS 3542 B

        Revenue by:           Sri P.L. Kureel, Sr.D.R.
        Assessee by:          Sri Gourav Mehta, A.R.

      Date of hearing                   :   19-12-2013
      Date of pronouncement             :   23-12-2013



     This is the assessee's appeal against the order of Ld. CIT(A)-XXI
Ahmedabad dated 16-07-2012.
I.T.A No.2091/Ahd/2012    A.Y. 2008-09                                              Page No           2
Shamlaji Pradesh Kelavani Mandal vs. ADIT(E)

2.    The assessee is aggrieved by the action of Ld. CIT(A) in confirming
the penalty of Rs. 53,000/- levied by AO u/s. 272A(2)(e).

3.    AO while levying this penalty has observed as under:-

             "Assessee is a charitable trust As per provisions of section
      139(4A) of the I.T. Act as applicable in assessee's case, assessee was
      supposed to file his return of income along with audit report on or
      before 30-09-2008. On verification of records it was noticed that
      return of income for A. Y 2008-09 was filed by assessee on 05-03-
             From the above facts, it is noticed that the return of income was
      filed by the assessee late by 521 days.


             Assessee's reply has been carefully considered but not found
      acceptable on the grounds mentioned below. Assessee simply stated
      that delay in filing of return is not intentionally therefore liberal view
      may be taken and drop the penalty proceedings. Assessee has not
      given any reasonable cause and failed to prove that there was
      reasonable cause for failure and also failed to justify the reasons for
      each default committed for late filing of the return. Submissions of
      return by charitable trust is essential even if its income is exempt as
      held in the case of Lala Gopimal Kuthiala Trust vs. ITO 1962 436 ITR
      (Punj). If the total income of the charitable trust (without claiming
      u/s. 11,12, and 13A) exceeds the maximum amount not chargeable to
      tax then submissions of return by the trust essential."

4.    In appeal this action of AO was confirmed by Ld. CIT(A).
I.T.A No.2091/Ahd/2012    A.Y. 2008-09                           Page No     3
Shamlaji Pradesh Kelavani Mandal vs. ADIT(E)

5.    Before us it was argued on behalf of the assessee that return could not
be filed in time in this case as due to illness of the secretary of the trust
finalization of accounts and audit could not be completed in due time. Audit
report u/s. 12AB r.w.s. 17B in Form No. 10B was finalized only on 13-02-
2010 and immediately return was filed on 15-03-2010. He therefore prayed
that since assessee was prevented by sufficient cause in not being able to file
the return in time penalty should not have been levied in this case and
therefore penalty so levied and sustained by Ld. CIT(A) may kindly be
deleted. Ld. DR on the other hand vehemently supported the order passed
by lower authorities.

6.    After hearing both the parties and perusing the record, we find that
there is no dispute about the fact that return in this case was filed late and
therefore penalty proceedings u/s. 272A(2)(e) were initiated and penalty of
Rs. 53,000/-was imposed. This penalty was confirmed by Ld. CIT(A).
Before us submission of the assessee was that return was filed late as the
accounts of the trust could be finalized and audit report was prepared by the
auditors only on 13-03-2010 due to illness of the secretary of the trust Mr.
Maheshbhai Patel who was suffering since 2001 and was also operated with
by-pass surgery. In support of this submission documents relating to the
illness and treatment of Mr. Patel were also filed.         Taking this into
consideration we are of the view that assessee was prevented by reasonable
cause in not being able to file his income tax return in time and therefore it
was not a fit case to impose penalty u/s. 272A(2)(e) and therefore penalty so
levied by AO and sustained by Ld. CIT(A) is hereby deleted.
I.T.A No.2091/Ahd/2012    A.Y. 2008-09                        Page No    4
Shamlaji Pradesh Kelavani Mandal vs. ADIT(E)

7.     In the result, assessee's appeal is allowed.
     Order pronounced in open court on the date mentioned
     hereinabove at caption page

             Sd/-                                              Sd/-
      (T.R. MEENA)                                      ( D.K. TYAGI)
 ACCOUNTANT MEMBER                                    JUDICIAL MEMBER
Ahmedabad : Dated 23/12/2013
     / Copy of Order Forwarded to:-
1. Assessee
2. Revenue
3. Concerned CIT
4. CIT (A)
5. DR, ITAT, Ahmedabad
6. Guard file.

                                                              By order/  ,

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