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TMI Blog2017 (12) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... y u/s 271B of the I.T Act without legally considering the provision of Sec. 273B of the Act. 3. That, the ld. CIT(A) was also unjustified in law in relying on the decisions of Hon'ble Kerala High Court and Calcutta High Court as the ratio of decisions in those cases are not applicable to the facts of the case of the assessee under appeal. 4. That, the assessee craves leave to amend, alter or withdraw any of the above-mentioned grounds or add any further ground(s) before or at the time of hearing of the appeal." 3. Although, in this appeal, the assessee has raised a multiple grounds of appeal, but at the time of hearing, the main grievance of the assessee has been confined to the issue that the penalty of Rs. 1,00,000/- imposed by the Assessing Officer u/s 271B of the I.T. Act was without recording any finding and without legally considering the provision of Section 273B of the Act. 4. The brief facts qua the issue are that the assessee filed his return of income on 28.12.2005 showing total income of Rs. 31,980/-, accompanied with Form No. 3CB & 3CD. The accounts of the assessee-firm was audited and signed on 21.12.2005. The tax Audit Report was supposed to be completed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove that there was a reasonable cause for failure. The explanation offered was not acceptable without any evidence. In view of the above the CIT(A) confirmed the penalty imposed by AO. 5. Not being satisfied with the order passed by the ld. CIT(A), the assessee is in further appeal before us. At the outset, the counsel for the assessee submitted before us that there was a reasonable cause for not getting books of accountsaudited u/s 44AB of the Act. The assessee could not produce the documents and papers to the tax auditor timely. Therefore, there was delay in getting tax audited u/s 44AB of the Act. The ld. Counsel also furnished before us a certificate of a Chartered Accountant which reads as under: TO WHOM IT MAY CONCERN This is to certify that the books of accounts of the firm M/s B.W.M International for the financial year 2004-05 was given for auditing to us before 31.10.2005. Due to want of some papers/documents the tax audit of said firm was completed by us as on 21.12.2005. FOR BAID BORAR & COMPANY Chartered Accountants. The ld. Counsel for the assessee has further submitted before us that the assessee filed Return of Income on 28.12.2005 along with P.L. A/c, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adras High Court in the case of CIT Vs. Alex Laboratories P. Ltd. dated 8th July, 2008 wherein it was held thatthe accounts were audited and also the assessee got the audit report, but the same was filed along with the return which was filed belatedly. In view of the aforesaid facts the ld Counsel prayed the Bench for deletion of the penalty imposed u/s. 271B of the I. T. Act at Rs. 1,00,000/-. 6. On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. 7. Having heard the rival submissions, perused the material available on record, we note that in the assessee`s case under consideration the accounting year ends on 31.03.2005. The assessee prepared the profit and loss account and Balance Sheet as on 31.03.2005 and he supposed to get the accounts tax audited U/s 44AB on or before 30.09.2005. The responsibility to get the accounts tax audited is on the assessee not on the Chartered Accountant. In the instant case the books of accounts of the assessee was audited and signed by a Chartered Accountant on 21.12.2005. Therefore, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was the reason for not submitting book of accounts to the tax auditor, before 30.09.2005 and why it was submitted before 31.10.2005. Why the books of accounts were not submitted to CA before 30.09.2005,( so that, tax audit would have been completed on time), has also not been explained by assessee. During the course of hearing, the ld. Counsel has been emphasizing that there was a delay on part of the Chartered Accountant (CA) to complete the tax audit report but from the certificate which was submitted by the assessee before us clearly shows that there is no delay on the part of the CA. It is the delay on the part of the assessee in submitting the books of accounts to the CA. The CA certificate is furnished below for ready reference: TO WHOM IT MAY CONCERN This is to certify that the books of accounts of the firm M/s B.W.M International for the financial year 2004-05 was given for auditing to us before 31.10.2005. Due to want of some papers/documents the tax audit of said firm was completed by us as on 21.12.2005. FOR BAID BORAR & COMPANY Chartered Accountants. From the above certificate we note that books of accounts were submitted to CA before 31.10.2005, and why the book ..... X X X X Extracts X X X X X X X X Extracts X X X X
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