TMI Blog2019 (5) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3). Therefore we are of the view that there was no palpable prejudice caused to the Revenue. See GOVIND GARG PROP. GARG ENTERPRISES VERSUS ITO, WARD- 2 (3) , AJMER [ 2017 (6) TMI 433 - ITAT JAIPUR] There was no mala-fide intent of the assessee to delay the filing of the tax audit report. Therefore we are of the considered opinion the penalty under section 271B in the given facts circumstance is not sustainable. Second year of the assessee when it committed the default - whether the assessee was a serial defaulter in compliance with the provision of section Act - assessee was to file the tax audit report on 30-11-2014 but filed on 31-1-2015 for the AY 2014-15 with the delay of two months only - HELD THAT:- First notice for the AY 2013-14 u/s 271B was issued on 11-3-2016 whereas the time limit to file the tax audit report for the year under consideration (2nd year) was 30-11-2014. Thus it is clear that the assessee was not aware of the proceeding of the section 271B which was initiated much later as discussed above. Therefore in our considered view, the assessee deserves the sympathetic view as taken in the AY 2013-14. In view of the above and considering the length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in the year under consideration was required to get its accounts audited u/s 44AB of the Act as the sales/turnover of it exceeded from ₹ 100/- Lakhs. Accordingly, the assessee was also required to file tax audit report in the prescribed Form No. 3CD within the time limit as specified u/s 139(1) of the Act i.e.30th September 2013. 2.3 However the AO noticed that the assessee had filed its return of income and audit report after the due date specified u/s 139(1) of the Income Tax Act i.e.05-05-2014 almost after a gap of 7 months 5 days. 2.4 The AO accordingly imposed the penalty u/s 271B of the Act which comes to ₹ 1,50,000/- (i.e. 0.5% of total sales/turnover of a sum of ₹ 6,49,13,431 = ₹ 3,24,657/- subject to maximum of ₹ 1,50,000/-) on account of non-compliance with the statutory provision of the Act. 3. The aggrieved assessee preferred an appeal before the Ld. CIT (A). The assessee before the Ld. CIT (A) submitted that the return of income and tax audit report was uploaded on income tax website after the due date only because of technical default as PAN of it was not registered on income tax website. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no major additions were made in assessment. No loss is caused to revenue in uploading of audit report belatedly. Copy of assessment orders are attached herewith. 5. We rely upon following similar decisions: a. Govind Garg vs. ITO (2017) Taxpub 1623, Jaipur Bench b. Rajkumari Barfna vs. ITO (2016) Taxpub 5142, Jaipur Bench c. Ajmer Aila Dugdh Utpadak Sahkari Sangh Ltd vs. ACIT (2017) Taxpub 1590, Jaipur Bench d. Hindustan Steel Limited vs. State of Orissa 1970 AIR SC 253. 6. On the other hand, the Ld. DR submitted that the reasons furnished by the assessee for the delay in filing the appeal are not plausible. Therefore the same cannot be subject to immunity under section 273B of the Act. 7. The Ld. DR vehemently supported the order of authorities below. 8. We have heard the rival contentions and perused the material available on the record. The issue in the instant case is that the assessee was required to get its account audited under provision of section 44AB of the Income Tax Act, and subsequently audit report in the prescribed Performa-Form 3CD was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground of reasonable cause that, assessee had bona fidely believed that audit report was uploaded by CA, but due to some technical problem the same did not get uploaded.--Assessee was an individual AO imposed penalty under section 271B for non-filing of audit report as required under section 44AB. Assessee's case was that audit report under section 44AB was filed by CA, but due to some technical problem it was not uploaded. Held: Assessee had given bona fide reason that CA had audited, his books of account and also uploaded the same. Assessee was under bona fide belief that audit report had been uploaded in the system developed by the department. Therefore, the penalty imposed by the authorities under section 271B on the assessee was not justifiable. We also find support and the guidance from the judgment of Hon ble Supreme Court in the case of Hindustan Steel Limited v. State of Orissa reported in 83 ITR 26 (SC) has held that the penalty should not be imposed unless the assessee acted deliberately. The relevant extract of the judgment reads as under : Obligation is the result of a quasi- criminal proceeding, and penalty will not ordinari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only. We also find that the assessment was also framed under section 143(3) of the Act without pointing out any specific. It is also not the case of the Revenue that the audit under 44AB of the Act was carried after the due date as discussed above. We are also conscious of the fact that it was the second year of the assessee when it committed the default in the complying of the provision of filing the tax audit report. The assessee was to file the tax audit report on 30-11-2014 but filed on 31-1-2015 for the AY 2014-15 with the delay of two months only. The question here arises whether the assessee was a serial defaulter in compliance with the provision of section Act. Regarding this, we note that the first notice for the AY 2013-14 under section 271B of the Act was issued on 11-3-2016 whereas the time limit to file the tax audit report for the year under consideration (2nd year) was 30-11-2014. Thus it is clear that the assessee was not aware of the proceeding of the section 271B of the Act which was initiated much later as discussed above. Therefore in our considered view, the assessee deserves the sympathetic view as taken in the AY ..... X X X X Extracts X X X X X X X X Extracts X X X X
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