TMI Blog2004 (5) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... by 31st Oct., 1999 and for asst. yr. 2000-01 by 31st Oct., 2000. The assessee filed the return of income for the aforementioned assessment years on 31st March, 2001 alongwith audit report. The AO had accordingly initiated penalty proceedings under s. 271B for both the assessment years. According to the AO, there was no response to the opportunity provided to the assessee by issue of notice, he accordingly held that the assessee had committed a default making himself liable to penalty of Rs. 37,540 for asst. yr. 1999-2000 and Rs. 53,600 for asst. yr. 2000-01. 4. The assessee appealed to the CIT(A). It was claimed on behalf of the assessee that the audit reports were given to the clerk of local tax lawyer who forgot to tell the advocate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO had initiated penalty proceedings under s. 271F simultaneously and in view of the explanation furnished by the assessee, the proceedings were dropped. According to the learned counsel, since the delay in filing of the return has been accepted to be covered by reasonable cause, the delay in furnishing of the audit report ought to have been considered on the same footing. The learned counsel also reiterated that the delay in filing the report was due to the default of the advocate for which the assessee cannot be penalised. Reliance was placed on the decision of Supreme Court in the case of Hindustan Steel Ltd. vs. State of Orissa (1972) 83 ITR 26 (SC) in support of the contention that the penalty should not be imposed for a mere technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was delay in filing of the returns. From the records, we also find that the assessee has taken contradictory stand and has not come up clean before the authorities. The assessee has claimed that no notice was issued to the assessee before imposition of penalty. The CIT(A) has recorded a finding of fact to the contrary. We also find from the paper book at p. No. 4 that the assessee had received a notice for asst. yr. 1999-2000 which is dt. 25th Jan., 2002 for hearing on 6th Feb., 2002. The assessee claimed to have responded to this notice which was purportedly issued for the default as contemplated under ss. 271F and 271B. Reply has been placed at page No. 4 of the paper book. As per the rubber stamp affixed at p. 4, the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the audit report had been handed over to the clerk of the advocate who had failed to furnish the same to the IT Department. The mistake committed in one year is stated to have been repeated in the second year. 9. The assessee has not furnished any evidence to establish that the audit report had been handed over to the clerk of the advocate. In the letter filed before the Tribunal, the assessee's counsel stated as under: "That as directed during the hearing of the abovementioned case, the affidavits of the concerned advocate and that of the appellant are enclosed herewith for the kind consideration of the Hon'ble Bench." 10. It has already been pointed that the purported affidavit of the advocate on the stamp paper is neither signe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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