TMI Blog2016 (10) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 533,87,720/- in the order passed u/s.143(3) on 14-12-2010 which is the income declared by the assessee in the revised computation of income. Thus we are of the considered opinion that this is not a fit case for levy of penalty u/s.271B of the I.T. Act. We therefore set aside the order of the CIT(A) and direct the AO to cancel the penalty - Decided in favour of assessee. - ITA No. 2087/PN/2014 - - - Dated:- 31-5-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM Assessee by : Shri Pravin Patil Department by : Shri Hitendra Ninawe ORDER Per R. K. Panda, AM This appeal filed by the assessee is directed against the order dated 07-08-2014 of the CIT(A)-I, Thane relating to Assessment Year 2008-09. 2. Levy of penalty of ₹ 1 lakh u/s.271B by the AO and upheld by the CIT(A) is the only issue raised by the assessee in the grounds of appeal. 3. Facts of the case, in brief, are that the assessee filed his return of income on 31-03-2010 declaring total income of ₹ 4,88,33,300/-. During the course of assessment proceedings the assessee firm submitted a revised computation of income after auditing the books of account u/s.44AB. In the said r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountant. It was further submitted that there was no absolute default by the assessee as the assessee has atleast obtained the tax audit report u/s.44AB after the specified due date. Relying on various decisions of the different Benches of the Tribunal it was submitted that levy of penalty u/s.271B should be deleted. 6. However, the CIT(A) was also not satisfied with the explanation given by the assessee. He noted that though the assessee has made the submission that the Accountant had left the job and the books could be completed only after the new Accountant joined, however the same was not based on any evidence. The assessee has not given the name of the old Accountant and when he left the job and when the new Accountant had joined etc. Distinguishing the various decisions cited before him, the Ld.CIT(A) upheld the penalty levied by the AO u/s.271B of the I.T. Act. 7. The Authorised Person on behalf of the assessee filed written submission and submitted that the tax audit report u/s.44AB of the Act for the A.Y. 2007-08 was obtained on 11-02-2009. Therefore, it was impossible to obtain tax audit report u/s.44AB of the Act for the A.Y. 2008-09 before the specified date, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such default was rejected by the AO. According to the AO, it is not understood as to how the assessee was running his business where the transactions are in crores without any Accountant. We find the Ld.CIT(A) upheld the penalty levied by the AO on the ground that assessee could not substantiate with evidence, the name of the old Accountant who had left the job and on which date the new Accountant joined the service, etc. It is the submission of the assessee that since the accounts of A.Y. 2006-07 and 2007-08 were audited only on 11-02-2009, therefore it was impossible to obtain the tax audit report for the impugned assessment year before the specified due date, i.e. 30-09-2008. Therefore, there is a reasonable cause in not getting the accounts audited before the specified date. 10. We find some force in the above submission of the assessee. It is an admitted fact that penalty was levied u/s.271B in A.Yrs. 2006-07 and 2007-08 for not getting the accounts audited before the specified date. However, the Tribunal vide order dated 27-11- 2013 has deleted such penalty levied u/s.271B for A.Yrs. 2006-07 and 2007-08. Therefore, we find some force in the submission of the assessee that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,340/- has been accepted by the Assessing Officer in the assessment. Considering the totality of the facts of the case, we are of the opinion that this is not a fit case for levy of penalty u/s.271B of the I.T. Act, 1961. We, therefore, set-aside the order of the CIT(A) and direct the Assessing Officer to cancel the penalty. 12. Further, the Pune Bench of the Tribunal in the case of Prachin Land Infra Pvt. Ltd. while deleting the penalty levied u/s.271B has observed as under : 6. We have heard the arguments advanced by the Ld. Departmental Representative and perused the record. We find the Assessing Officer in the instant case levied penalty of ₹ 36,249/- for obtaining the Audit report on 11-02-2009 as against the statutory due date of ₹ 31-10- 2007. We find the Ld.CIT(A) upheld the penalty so levied by the Assessing Officer rejecting the explanation of the assessee giving the bonafide reasons for not getting the accounts audited before the statutory due date. From the statements of facts filed by the assessee, we find the Assessing Officer assessed the income at ₹ 61,37,420/- as against the income declared at ₹ 55,62,383/- by making addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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