TMI Blog2017 (2) TMI 1405X X X X Extracts X X X X X X X X Extracts X X X X ..... 4AB of the Act and to furnish the reports - Held that:- It is not sufficient that an explanation is given. Such explanation has to be proved and substantiated. Nothing has been brought on record by the assessee to substantiate its argument that its Accountant had resigned or to show that non compliance with the statutory provisions was due to difficulties beyond the control. Assessee was in the business since many years. For the preceding assessment year also assessee had filed its tax audit report belatedly. We are thus of the opinion that assessee could not bring out any reason which could be termed as reasonable. In our opinion, levy of penalty u/s.271B of the Act was justified. - Decided against assessee. - I.T.A. Nos.3397 & 3398/Mds/2016 - - - Dated:- 28-2-2017 - Shri N.R.S. Ganesan And Shri Abraham P. George, JJ. Appellant by : Shri. T. Vasudevan, Advocate Respondent by : Shri. Durai Pandian, Sr. A.R ORDER Abraham P. George, These appeals filed by the assessee are directed against orders dated 20.10.2016 of ld. Commissioner of Income-tax (Appeals)-4, Chennai for the impugned assessment year. 2. First appeal is against disallowance of A38,44, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax (Appeals) it seems assessee made written submissions wherein it was argued that bonafide and genuine expenditure could not be disallowed u/s.40A(3) of the Act. As per assessee situations covered by of Rule 6DD of Income Tax Rules was only illustrative and not exhaustive. Reliance was placed on the judgment of Supreme Court in the case of Attar Singh Gurmukh Singh vs. ITO, 191 ITR 667 and that of Hon ble Delhi High Court in the case of Basu Distributor vs. ITO 292 ITR 29. Ld. Commissioner of Income Tax (Appeals) disposed of the appeal considering the submissions of the assessee and took a view that assessee s case did not fit in any of the clauses of Rule 6DD of the Income Tax Rules. Aaccording to him, judgment of Apex Court in the case of Attar Singh Gurmukh Singh (supra) was in favour of Revenue. Ld. Commissioner of Income Tax (Appeals) noted that Hon ble Delhi High Court in the case of Basu Distributor (supra) had highlighted the onus placed on the assessee for substantiating its claim of exceptional circumstances, which would absolve it from application of Sec. 40A(3) of the Act. He thus upheld the order of the ld. Assessing Officer. 5. Now before us, ld. Authorised Repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3CB and 3CD as mandated u/s.44AB of the Act. Contention of the ld. Authorised Representative was that at the time of assessment such audit reports were available with the ld. Assessing Officer. Ld. Authorised Representative submitted that Accountant of the company had resigned in the month of August, 2012 and assessee had to engage a new accountant. As per ld. Authorised Representative the books and accounting papers were in disarray and it took lot of time to prepare the accounts. Thus, according to him, there was no intention nor any deliberate attempt to delay the audit. Contention of the ld. Authorised Representative was that there were reasonable cause for not getting the audit completed in time and therefore levy of penalty u/s.271B of the Act was not warranted. 10. Contra, ld. Departmental Representative submitted that assessee was habitually late in filing tax audit report. Even for assessment year 2011-2012, assessee had filed audit report beyond the stipulated time. Further, according to ld. Departmental Representative, resignation of an employee from an organization could hardly be cited as a reason for delay in audit conducted. Thus, according to him, levy of penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed : Provided that this section shall not apply to the person, who derives income of the nature referred to in section 44B or section 44BBA, on and from the 1st day of April, 1985, or, as the case may be, the date on which the relevant section came into force, whichever is later : Provided further that in a case where such person is required by or under any other law to get his accounts audited, it shall be sufficient compliance with the provisions of this section if such person gets the accounts of such business or profession audited under such law before the specified date and 4furnishes by that date the report of the audit as required under such other law and a further report by an accountant in the form prescribed under this section. Explanation For the purposes of this section, (i) accountant shall have the same meaning as in the Explanation below sub-section (2) of section 288 ; (ii) specified date , in relation to the accounts of the assessee of the previous year relevant to an assessment year, means the due date for furnishing the return of income under sub-section (1) of section 139 . Definition of specified date clearly requires an assessee to file th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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