9911796707
TMI Blog2019 (7) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, in this appeal the assessee has raised multiple grounds of appeal but at the time of hearing, the solitary grievance of the assessee has been confined to the issue that the Assessing Officer was erred in levying penalty u/s 271B of the Act on account of not filing the tax audit report. 3. Brief facts qua the issue are that in the instant case the original assessment u/s 143(3) was completed on 21.03.2016 determining total income of Rs. 26,07,98,030/-. In course of assessment proceedings it was noted by the A.O. that during the year the assessee failed to carry out statutory Audit and did not file the Tax Audit report in prescribed forms. As per the AST module the assessee filed only report in form 3CB and 3CD but not 3CA, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (a) being in Form 36B. c) The members are requires to be furnished u/s 44AB shall in Form 3CD. The appellant on its part has merely submitted that its accounts were audited for the period 1.1.2012 to 31.03.2013 and not for the period 01.04.2012 to 31.03.2013 and hence the requirement of furnishing Form 3CA was not application. The explanation so submitted by the appellant before the A.O. as well as before me has no relevance vis-à-vis sec. 44AB with Rule 6G since the turnover of the appellant for the year ended 31.03.2013 pertaining to A.Y. 2013-14 is Rs. 141.13 crore and its accounts have been audited under the Companies Act and clearly the provision of Rule 6G(1)(a) were applicable and which the appellant did not comply with. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of section 44AB of the Act and Rule 6G of the Rules that Form 3CA would be required to be filed for a previous year only when accounts for such previous year have been audited under any other law. We note that during the year ended 31 March 2013, the assessee had prepared financials for a period of 15 months (i.e., from January 2012 to March 2013). The said accounts for fifteen months (refer - Page 1 to Page 25 of paper book) were audited under the provisions of Companies Act, 1956. As such, it is evident from the above that the financial accounts of the assessee were audited under the Companies Act, 1956 for the period January 2012 to March 2013 and not for the previous year April 2012 to March 2013. Accordingly, the Assessee has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n identical facts in the case of SPA Lifecycle vs ACIT [2014] 46 taxmann.com 347 (Del-Trib.) wherein it has held as follows: "11. Admittedly, in the present case, these ingredients are not fulfilled and, therefore, operation of second proviso is ruled out. Now the second question arises as to whether in such a situation assessee is required to wait till completion of statutory audit under the relevant provision of the Act or it has to furnish the tax audit report as contemplated u/s 44AB. The answer to this is obvious and assessee cannot take the plea of not getting its account audited beyond the specified date and, therefore, is required to furnish the tax audit report as per the provisions of sec. 44AB. In such a situation the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd profit and loss account and certify that the same are in agreement with the books of account maintained by the assessee, whereas form 3CA only requires the audit report along with audited financial statement to be annexed with the report. Thus, primarily the only difference in form 3CA and form 3CB is that in form 3CA the Auditors are not required to give separate audit report. But in form 3CB, since that deals with the case of an assessee whose accounts have not been audited, mandates a comprehensive audit report. Thus, when an assessee had furnished the tax audit report in form 3CB then it cannot be said that it has not complied with the provisions of sec. 44AB merely because the report is not in form 3CA which was not possible for ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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