TMI Blog2016 (12) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish the physical Audit Report before the A.O. that would not justify the levy of penalty u/s. 271B of the Act. More so, because the details of the Auditors, the details of the Audit Report and the Audited Financial Statements were placed before the A.O. in the form of E -return of income. - Decided in favour of assessee - ITA. No: 2686/AHD/2013 - - - Dated:- 21-12-2016 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER For The Appellant : Shri P. M. Mehta, AR For The Respondent : Shri Prasoon Kabra, Sr. D.R. PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. This appeal by the Assessee is preferred against the order of Ld. CIT(A)-XIV, Ahmedabad dated 12.09.2013 pertaining to A.Y. 2008-09. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/9/2008 electronically in ITR-6. It is further submitted that as per such form, assessee is required to mention whether assessee is liable to tax audit report or not, wherein assessee has mentioned that YES . Further, it had submitted the following details as required in ITR-6. (i) Name of the auditor signing tax audit report. (ii) Membership number of the auditor (iii) Name of the auditor (proprietorship /firm) (iv) PAN of the proprietorship/firm (v) Date of the audit report It is evident from such details that assessee has obtained tax audit report required u/s 44AB of the Act hence assessee cannot be treated as assessee in default for non obtaining the tax audit report before due date of filing retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction would read as follows: 273B. Notwithstanding anything contained in Section 27IB, no penalty shall be imposable on the person or the assessee as the case may be for any failure referred to in the said provisions if he proves that there was reasonable cause for the said failure. (emphasis supplied) Thus, penalty u/s. 271 B shall not be imposable if the assessee proves that there was a reasonable cause for not getting accounts audited. In the epoch making decision in Hindustan Steel Ltd. Vs State of Orissa (1972) 83 1TR 26 (SC) the Supreme Court has interalia held that 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still stronger insofar as section 69 envisages only levy of tax while section 271B envisages levy of penalty. 5. The contentions of the assessee was dismissed by the A.O. by making the following observations:- 1. The contention of the assessee that it has preferred an appeal before Hon ble CIT(A) is not accepted as the appeal filed against the order u/s. 143(3) has no relevance with proceedings initiated u/s. 271B of the I.T. Act for violation of provisions of section 44AB of the I.T. Act. 2. The another contention of the assessee that it has filed its return of income for current assessment year on 28.9.2008 electronically in ITR-6 and had confirmed in its return of income that it had got its account audited by filling appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The assessee's contention that mother of the authorized representative died on 24.11.2010 and was unable to attend hearing on 26.11.2010 and on the same day the assessee had requested for adjournment up to 30.11.2010 which was denied by the AO. Thus the company has reasonable cause for non submission of details called for. Considering this the assessee company requested to kindly drop the penalty proceeding initiated. This contention of the assessee is also hold no water as for filing report u/s. 44AB of the I T Act the presence of AR is not required the director or the principal officer could have filed the report before the AO. Further as per the Act the assessee ought to have' got audited its books of account on before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es below. The undisputed fact is that the return of income was filed electronically and being a paperless return, there was no requirement to file the Audit Report along with the return of income. It is also an undisputed fact that complete details of Auditors were furnished in the return of income itself. Details as required in Form 3CD were also furnished with the E-return so filed which is evident from the copy of return exhibited at pages 54 to 80 of the paper book. Merely because due to some unforeseen circumstances, the assessee could not furnish the physical Audit Report before the A.O. that would not justify the levy of penalty u/s. 271B of the Act. More so, because the details of the Auditors, the details of the Audit Report and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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