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2019 (6) TMI 96 - AT - Income TaxPenalty u/s 271B - failure of the assessee to file the audit report before the due date of filing the return u/s 139(1) i.e. 30th September, 2012 - violation of provisions of section 44AB - HELD THAT:- Since the assessee has filed the return of income on 29th March, 2014, therefore, the AO considered this late filing of the return along with the audit report as violation of provisions of section 44AB and consequently the AO levied the penalty u/s 271B. AO has not levied the penalty for not filing of the audit report along with the return of income filed by the assessee on 29th March, 2014 but the AO has levied the penalty due to the delay in filing the audit report as it was filed along with the return of income on 29th March, 2014. Further, the rule 12(2) even if it is considered to be applied as on the date of filing the return, the relevant date is the due date of filing the return u/s 139(1). Hence when the assessee has already filed the audit report on 29.03.2014 and as per the return of income the audit report was already obtained and read on 2nd September, 2012, then in the facts and circumstances of the case prior to the return of income filed by the assessee there was no occasion for the assessee to file the audit report separately. The amended provisions of rule 12(2) came into effect from 01.04.2013 whereas the due date of filing the return under section 139(1) is 30th September, 2012 and hence when the amended rule was not applicable as on 30th September, 2012, the assessee has made out the clear case of reasonable cause for not complying with the provisions of section 44AB and consequently the case of the assessee clearly falls under the provisions of section 273B. Accordingly, as relying on KK. SPUN PIPE. [2005 (4) TMI 28 - PUNJAB AND HARYANA HIGH COURT] the penalty levied under section 271B is not sustainable - Decided in favour of assessee.
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