TMI Blog2017 (3) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. - Decided in favour of assessee. - I.T.A No. 804/Kol/2014 And I.T.A No. 805/Kol/2014 - - - Dated:- 28-2-2017 - Shri J. Sudhakar Reddy, Accountant Member and Shri S.S. Viswanethra Ravi, Judicial Member For the Appellant : Shri. H. V.Bharadwaj, ACA, ld. AR For the Respondent : Shri. R.S.Biswas, CIT, ld. DR ORDER Shri S.S Viswanethra Ravi, JM These two appeals by the Assessee are directed against the separate orders both dated 12-3-2014 passed by CIT(A)-XXXVI, Kolkata for the A.Ys 2008-09 and 2009-10, whereby he confirmed the penalty of ₹ 1,00,000/- each imposed by the Assessing Officer u/s. 271B of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. The only ground that is to be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome tax law. He rejected the explanation of the assessee on its failure to obtain and furnish the tax audit report by the specified date. He, therefore, proceeded to impose the penalty of ₹ 1,00,000/- u/s. 271B of the Act. 5. The penalty imposed by the Assessing officer under section 271B of the Act was challenged by the assessee in the appeal before the CIT(A). The Assessee contended that the statutory Auditors were appointed by the Cooperative Department of Govt. of West Bengal to conduct statutory audit and could complete their audit only on 19-08-2008. It was submitted that the Assessee-society thereafter appointed Tax Auditor, who in turn submitted his audit report on 31-07-2009, which was filed on 14-09-2009 along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the AR has been unable to provide any correspondence or other evidence to show that any effort was made by the assessee to ensure that the co-operative deptt. appoints auditors in time and that the audit was done by the specified date. 8. We heard rival submissions and perused the material available on record. As rightly pointed out by the ld. AR that this Tribunal decided the identical issue by holding that the delay caused in obtaining and filing the audit report was beyond the control of assessee. The relevant portion para no-4 of said order dated 03-06-2016 in the case of supra is reproduced herein below for useful reading: 4. We have heard both the sides and also perused the relevant material available on record. As su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to impose penalty under section 271B and cancelling the penalty so imposed by the Assessing Officer and confirmed by the ld. CIT(Appeals), we allow this appeal of the assessee. 9. In the present case also the assessee could not obtain and file the tax audit report as required u/s. 44AB of the Act due to delay in appointment of auditors by the co-operative department for statutory audit. This appointment is not in the control of the assessee. It is only then after that the assessee appoints tax auditor. The assessee filed the tax audit report immediately after obtaining the same from its Tax Auditor in Form No.3CA on 14-09-2009. We find that the issue on hand is similar to that case decided by order dated 03-06-2016 by the Coordinate B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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