TMI Blog2019 (6) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty due to the delay in filing the audit report as it was filed along with the return of income on 29th March, 2014. Further, the rule 12(2) even if it is considered to be applied as on the date of filing the return, the relevant date is the due date of filing the return u/s 139(1). Hence when the assessee has already filed the audit report on 29.03.2014 and as per the return of income the audit report was already obtained and read on 2nd September, 2012, then in the facts and circumstances of the case prior to the return of income filed by the assessee there was no occasion for the assessee to file the audit report separately. The amended provisions of rule 12(2) came into effect from 01.04.2013 whereas the due date of filing the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 1,50,000/-, which is totally against the law and against the spirit of CBDT Circular No. 3 of 2009. 3. That on the facts and in the circumstances of the case the assessee was under bonafide belief that he is required to obtain audit report before due date of filing of return and submit as and when it is demanded by the assessing authority. Hence no penalty can be imposed. 4. That the appellant reserves his right to add, amend or alter any ground or grounds of appeal on or before the date of appeal hearing. 2. The assessee company filed its return of income for the year under consideration on 29th March, 2014. Since the return was filed belatedly beyond the prescribed time limit under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of section 44AB of the Act. The ld. CIT (A) could not accept the explanation of the assessee and confirmed the levy of penalty. 3. Before us, the ld. A/R of the assessee has reiterated his contention and submitted that the assessee has given the date of Audit Report in the return of income and, therefore, it is not a case of non-audit report but since the return of income itself was filed belatedly, therefore, there was a delay in filing the audit report. He has referred to the return of income and submitted that the date of audit report is clearly given in the return of income as on 2nd September, 2012 which is before the due date of filing of return under section 139(1) of the IT Act. The AO has completed the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of failure of the assessee to file the audit report before the due date of filing the return under section 139(1) of the IT Act i.e. 30th September, 2012. Since the assessee has filed the return of income on 29th March, 2014, therefore, the AO considered this late filing of the return along with the audit report as violation of provisions of section 44AB and consequently the AO levied the penalty under section 271B of the Act. The ld. CIT (A) has confirmed the said action of the AO as under :- (iv) It is an undisputed fact that the appellant has filed its return of income on 29.03.2014 electronically and the procedural law as applicable on the said date is to be considered. It would be relevant to reproduce provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to file its audit report electronically but that is not the case. Therefore, in view of the totality of facts and circumstances of the case, it is held that the appellant has not complied with the provisions of section 44AB of the Act to be read with Rule 12 of the IT Rules and thus the AO was justified in imposing penalty of ₹ 1.50 lac u/s 271B of the Act and hence the same is hereby upheld. Thus the ld. CIT (A) has applied the amended provisions of Rule 12(2) of the IT Rules as on the date of filing of the return by the assessee on 29th March, 2014. It is pertinent to note that the AO has not levied the penalty for not filing of the audit report along with the return of income filed by the assessee on 29th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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