TMI Blog2010 (6) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, as per section 92E of Income Tax Act, in Form No. 3CEB relating to International transactions was not filed alongwith the return of income whereas the same was required to be filed on or before the due date prescribed u/s 139(1) of the Income Tax Act i.e. by 31.10.2006. The penalty proceeding were also initiated. Assessee responded as under vide reply dated 14.7.2008:- 1. That filing of the income tax return u/s 139(1) for A.Y. 2006-07 was made mandatory to file online without any Annexure/Reports/ Attachment. 2. That on account of online filing being introduced for the first time, non documents were filed with the return which are usually filed alongwith manual return like copy of Audited accounts, TDS certificates, Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws:- i) C.I.T. vs. Axis Computers (India) P Ltd. (2009) 178 Taxman 143, ii) C.I.T. vs. Integrated Databases India Ltd. (2009) 178 Taxman 432, iii) C.I.T. vs. Gabriel India Ltd. (1993) 71 Taxman 585; (1993) 114 CR 81 (1993) 203 ITR 108, 11 Taxman 158. 4.1 Further affidavit from Director and Chartered Accountant of the assessee company was also enclosed confirming that the report in form 3CEB for the assessment year 2006-07, was obtained in time on 01.09.2006 and was in agreement with the return of income and annual audited accounts filed. But Ld. Commissioner of Income Tax (Appeals) did not accept these contentions. He referred to the decision of the Hon ble High Court in the case of C.I.T. vs. Escorts Finance 206 CTR 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one hundred thousand rupees. 7. From the above it is clear that as per the mandate of section 92E, the assessee in this case was to obtain the Audit Report and file it before the due date for filing return. Section 271BA provides for a penalty of ₹ 1,00,000/- for failure to follow the mandate of section 92E. We also note that section 273B provides that no penalty inter-alia u/s 271BA will be leviable, if there is reasonable cause for the failure of the assessee to comply with the provisions mentioned therein. 8. Now in the present case, we find that assessee has claimed that the said audit report was obtained much earlierthan the due date for filing the return. The same could not be filed alongwith the return as the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act, or where the breach flows from a bonafide belief that the offender is not liable to act in the manner prescribed by the statute. 10. In the background of the aforesaid discussion and precedent, we set aside the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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