TMI Blog2002 (1) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is 1991-92 and the due date for getting the accounts audited and obtaining of the audit report was 31-10-1991. He has contended that the assessee got his accounts audited on 5-6-1991 i.e., within due date he has contended that the assessment order is placed on page 4 of P.B. but there is no direction for initiation of penalty proceedings under section 271B, in the assessment order. He has contended that when initiation of penalty is not mentioned in the assessment order, then penalty proceedings cannot be initiated. He has cited ACIT v. Kamdhenu Food Products [2001] 70 TTJ (Pune) 720 , D.M. Manasvi v. CIT [1969] 72 ITR 17 (Guj.). He has contended that for levy of penalty under section 271-B there are general limbs, one is regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only when he was made aware regarding requirement of filing of the I.T return by his sales tax counsel then he filed the return voluntarily. It has also been explained therein that the family circumstances of the assessee were disturbed, and that the case is of a small trader. 4. As against the above, the ld. D.R. of revenue has contended that the legal objection raised by the ld. A.R. of assessee appellant has not been dealt by the ld. CIT(A) and the same does not arise from the CIT s impugned order. He has contended that there is no necessity that initiation should be in the assessment order. He has contended that as regards non-obtaining of the audit report within time. The assessee did not furnish any evidence to support his plea. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order is not there in law. No such requirement can be imported from the provisions of section 271(1) in section 271B : 70 TTJ 720 also cannot be considered/followed to the rescue of the assessee for the reason that the above mentioned provisions of law have not been considered therein while drawing the conclusion. In 66 TTJ 180, ITAT, Ahmedabad has held that for assessment year 1990-91, the obtaining of the audit report alone was necessary under section 44AD and not the furnishing/filing of the same. It has also been held therein that when the audit report contained the date 28-12-1990 and the due date was 31-12-1990 and the audit report was filed along with the return on 15-1-1991, the onus of proving that the apparent, is not real i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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