9911796707
TMI Blog2016 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... in confirming the penalty of Rs. 1 lakh levied by the A.O. u/s.271B of the I.T. Act. 3. Facts of the case, in brief, are that the assessee is an individual and is engaged in the business of trading of Iron, Steel, MS Scrap etc. He filed his return of income on 02-09-2009 declaring total income of Rs. 4,88,380/-. The AO noted that the assessee has not filed the tax audit report even upto the date of assessment, i.e. 15-12-2011 and has not attended before him for which he had to complete the assessment exparte. The AO asked the assessee to explain as to why penalty u/s.271B should not be levied for violation of the provisions of section 44AB of the Income Tax Act, 1961. It was explained by the assessee that the return was filed on 02-09-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held the penalty levied u/s.271B of the I.T. Act by observing as under : "9. I have carefully considered facts of the case and rival contentions. On perusal of the same, it has been noticed that the appellant has asked the appellant to file tax audit report on various occasions, however, the AO has not filed the same wither after filing the return of income or during assessment proceedings. The appellant has claimed that he has obtained tax audit report dated 20-05-2009, however, the said audit report has been furnished along with submission dated 06-08-2013. The appellant has mentioned in his submission dated 24/09/2014 that in para-7 (i) of Circular No.3 of 2009 dated 21/05/2009, it has been clarified that an assessee should obtain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified in levying penalty of Rs. 1,00,000/- u/s 271B of the Act. I am also of the considered view that the appellant has failed to furnish the tax audit report before the AO. without any reasonable cause within the meaning of provisions of section 273B of the Act. Considering the totality of the facts, the above discussion and reasons mentioned by the A.O. for levying penalty u/s.271B, the penalty of Rs. 1,00,000/- levied by the A.O. u/s.271B of the Act is confirmed." 6. Aggrieved with such order of the CIT(A) the assessee is in appeal before us. 7. The Ld. Counsel for the assessee submitted that the assessee has got the audit report on 28-05-2009 and paid the self assessment tax on 26-08-2009 and uploaded the return on 02-09-2009. All t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of section 271B reads as under : "If any person fails [***] to get his accounts audited in respect of any previous year or years relevant to an assessment year or [furnish a report of such audit as required under section 44AB], the [Assessing] Officer may direct that such person shall pay, by way of penalty, a sum equal to one-half per cent of the total sales, turnover or gross receipts, as the case may be, in business, or of the gross receipts in profession, in such previous year or years or a sum of [one hundred fifty thousand rupees], whichever is less.]" 10. From the above, it can be clear that the levy of penalty for failure to get the accounts audited or furnishing of report of such audit report as per the provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section u/s.44AB if the assessee proves that there was a reasonable cause for the said failure. In the instant case, no doubt the assessee has not furnished the audit report during the course of assessment proceedings but such failure has been explained by the Ld. Counsel for the assessee as due to non-appearance by the Authorised Representative of the assessee due to the marriage of his son and the illness of his younger brother. Considering the totality of the facts of the case and considering the fact that assessee has filed the audit report before the AO during the course of penalty proceedings, got his accounts audited, paid the tax and filed the return of income much before the specified date, therefore, we are of the considered op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpliance on 15-09-2010, however, the assessee attended the office of the AO on 18-05-2011 at 10.30 am but the AO did not reach the office from Aurangabad. Similarly, on 05-12-2011 the advocate to whom the notice was sent was busy in marriage function of his son till 30-11-2011 and on 05-12-2011 his younger brother was detected with brain cancer for which had to go to Mumbai for operation on 10-12-2011. 15. However, the CIT(A) was not convinced with the above arguments advanced by the assessee. He observed that the contention of the assessee are not supported by documentary evidence. The assessee should have obtained the adjournment or when he has attended, he should have filed written letters to the AO about the fact of attendance on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
