TMI Blog2011 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... may be and the assessee has not shown reasonable causes for not filing the audit report within the stipulated time - The assessee argued before the CIT(A) that initiation of penalty proceedings is barred by limitation - However, it could not show as to how the initiation of penalty proceedings is barred by limitation. Held that: do not find any infirmity in the orders of the CIT(A)- Hence, penalty is confirmed - The appeals of the assessee is dismissed. - I.T.A. NO. 156 & 157/HYD/2010 - - - Dated:- 25-3-2011 - O R D E R PER CHANDRA POOJARI, AM: Both these appeals by the assessee are directed against the separate orders of the CIT(A)-III, Hyderabad dated 15th December, 2009 for assessment years 2003-04 and 2005-06. Since comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to comply with the provisions of sec. 92E of the Act, penalty should not be levied. Later, the Assessing Officer has issued another show-cause notice in this regard on 19.12.2008. In response to this, as noted by the Assessing Officer, though the AR of the assessee has appeared before him and discussed the matter, he has not furnished any written explanation. Under these circumstances, the Assessing Officer concluded that there was no reasonable cause for the failure on the part of the assessee to file the required statutory report in Form No. 3CEB, as required u/s. 92E of the Act. The Assessing Officer thus held that the assessee is liable for penalty u/s. 271BA of the Act and levied penalty of Rs. 1,00,000 u/s. 271BA on the assessee vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 80HH. Further he relied on the judgement of the Supreme Court in the case of Hindustan Steel Ltd., vs. State of Orissa, 83 ITR 26 wherein the Supreme Court held as under: An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92E. Every person who has entered into an international transaction during a previous year shall obtain a report from an accountant and furnish such report on or before the specified date in the prescribed form duly signed and verified in the prescribed manner by such accountant and setting forth such particulars as may be prescribed. 10. Admittedly in this case the assessee did not comply with the requirements of the above provisions of section 93E. The main contention of the assessee s counsel herein is that the assessee is having reasonable causes for not filing the audit report as prescribed by section 92E of the Act. The reason which the assessee has given herein is that due to clerical error the report could not be filed. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 80HH. We cannot compare the beneficial provisions of 80HH to the penal provisions of section 271BA. Further in the present case, the assessee has not placed any evidence that it was filed by the assessee before completion of the assessment u/s. 143(3) or 143(1). The filing of audit report during the assessment u/s. 148 does not cure the mistake committed by the assessee. From this we can infer that the assessee has not filed the report u/s. 92E before the Assessing Officer on or before the completion of assessment u/s. 143(3) or processing the return u/s. 143(1) of the Act. Had it filed the report u/s. 92E, we are completely in agreement with the proposal that the penalty cannot be levied. Adverting to the facts in the present case th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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