TMI Blog2019 (1) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... tion u/s. 80J observed that once audit report has been made available before the AO before the completion of assessment proceedings, the assessee should be granted deduction u/s. 80J of the Act. We observe that this judgment was rendered in the context of adjudication of quantum of deduction claimed by the assessee. Hence, the said analogy can very well be drawn and used in the penalty proceedings like that of the assessee. To sum up, we hold that the assessee had committed only technical venial breach for which he cannot be penalized - Decided in favour of assessee. - Decided in favour of assessee. - I.T.A. No. 504/Coch/2018 - - - Dated:- 22-1-2019 - S/Shri Chandra Poojari, AM And George George K., JM For the Assessee : Shri R. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings u/s. 271B is not void. 4.1 The CIT(A) observed that the assessee got his accounts audited only on 25/01/2014 as against the stipulated due date of 30/09/2012. There was a delay of 17 months for which no explanation has been given. Therefore, the CIT(A) was satisfied that this was a fit case for imposing penalty u/s. 271B of the I.T. Act. The penalty leviable u/s. 271B is a sum equal to one-half percent of the total turnover or a sum of ₹ 1,50,000 which ever is less. One-half percent of the assessee s total turnover (Rs.28,16,33,772 x .5%) is ₹ 14,08,168/- Accordingly, he confirmed the levy of penalty of ₹ 1,50,000/-. 4.2. During the appeal proceedings, the learned AR argued that audit report is only directory an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.03.2015 are void ab initio. According to the CIT(A) Assessing Officer had rightly held that the penalty proceedings are independent of assessment proceedings. 4.4 The CIT(A) observed that the explanation of the Ld. AR that the delay was on account of delay in filing of return of income for A.Ys. 2010-11 and 2011-12 was not satisfactory and the penalty leviable u/s. 271B of the Act is subject to the reasonable cause shown by the assessee u/s. 273B of the Act. It was also observed that the assessee got his accounts audited for A.Y. 2010-11 on 19.09.2010 and for A.Y. 2011-12 on 15/09/2011. Therefore, according to the CIT(A), it was evident that the assessee got his accounts for A.Ys 2010-11 and 2011-12 audited within the due date, irresp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 835) (Ker.) ii) ACIT vs. Amar Chand Raj Kumar (2004) (89 ITD 96)(ITAT, Chandigarh) iii) Prem Prakash Senapati vs. ITO (ITA No.459 185/CTK/2017 dated 17/04/2018) )(ITAT, Cuttack). 7.1 From the material available on record, we are of the view that the assessee got his books of accounts audited on 25/01/2014 which was made available o the Assessing Officer and no prejudice has been caused to the Revenue. Now the short question that arises is whether in this scenario, penalty u/s. 271B of the Act can be levied or not. In our considered opinion, the assessee had only committed technical venial breach which created any loss to the exchequer as the audit report was available to the Assessing Officer before the completion of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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