TMI Blog2019 (8) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings. Assessment Year 2008-2009 - It was held by the Hon ble High Court in the case of Bisauli Tractors [2007 (5) TMI 181 - ALLAHABAD HIGH COURT ] that the if a person has not maintained the accounts book or any accounts the question of its audit does not arise and in such an event the imposition of penalty is under the provision contained in section 271A. Therefore, it was concluded by the Hon ble Allahabad High Court that the penalty proceedings u/s 271B would not apply. No contrary judgment of the Hon ble jurisdictional High Court has been brought to our notice, hence, by following the judgment of the Hon ble Allahabad High Court in the case of Bisauli Tractors (supra) , we delete the penalty imposed u/s 271B in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of section 44AB of the I. T. Act, the assessee was required to get his books of account audited and file return of income within the prescribed time. The assessee failed to get the books of account audited and belatedly filed his return of income. Hence, penalty proceedings u/s 271B of the I. T. Act were initiated and penalty orders for all the three assessment years mentioned above were passed on 28. 03. 2013. 3. Aggrieved by the orders imposing penalty u/s 271B of the I.T. Act amounting to ₹ 1 lakh for each assessment years, the assessee preferred appeals to the first appellate authority. The CIT(A) confirmed the imposition of penalty u/s 271B of the I. T. Act and dismissed the appeals filed by the assessee vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the penalty can be sustained for each of the assessment years. Assessment Year 2004-2005 6. For assessment year 2004-2005, the due date for filing of the audit report was 01. 11. 2004. The return of income along audit report was filed only on31. 03. 2005, i. e. , after a delay of 5 months. The learned Counsel for the assessee relying on the order of the Cochin Bench of the Tribunal in the case of Johns Biwheelers v. ACIT [(2019) 70 ITR (Trib. ) 325 (Cochin)] had submitted that the return of income and audit report u/s 44AB of the I. T. Act was filed much before the assessment was completed, hence the default was only a technical breach not causing any loss to the exchequer, therefore, penalty im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 28/03/2014 which was made available to 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 does not create any loss to the exchequer as the audit report was available to the Assessing Officer before the completion of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2008) 299 ITR 0219 (All. )]. The Hon ble Allahabad High Court had observed that separate penalty proceedings has been provided for nonmaintenance of account u/s 271A of the I. T. Act, whereas, for not getting the accounts audited and not furnishing the audit report, the penalty to be imposed is u/s 271B of the I. T. Act. It was held by the Hon ble High Court that the if a person has not maintained the accounts book or any accounts the question of its audit does not arise and in such an event the imposition of penalty is under the provision contained in section 271A of the I. T. Act. Therefore, it was concluded by the Hon ble Allahabad High Court that the penalty proceedings u/s 271B of the I. T. Act would not apply. No contrary judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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