9911796707
TMI Blog2023 (3) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, 1961 ["Act" in short]. 2. Brief facts of the case are that the assessee has filed his return of income on 03.04.2016 for the assessment year 2011-12 declaring total income of Rs..9,55,080/-. The assessee has not filed the return of income for the assessment year 2011-12 within the time allowed under section 139(1) of the Act. The assessee bas also not filed the return of income before the end of the assessment year. The assessee had made cash deposits into the bank accounts during the financial year 2010-11 relevant to the assessment year 2011-12 and there was reason to believe that incomes chargeable to tax of more than Rs..1 lakh has escaped assessment within the meaning of clause (b) to explanation 2 of section 147 of the Act. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of assessment and by relying upon the decision of the Tribunal in the case of Balaji Logistics v. ACIT in I.T.A. No. 2248/Chny/2019 dated 07.09.2022, the ld. Counsel prayed for deleting the penalty levied under section 271B of the Act. 5. On the other hand, the ld. DR strongly supported the orders of authorities below. 6. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. In the penalty order, the Assessing Officer had noted that the assessee's gross receipt in the year under consideration were to the tune of Rs..1,67,35,870/-. Therefore, the assessee was required to get his accounts audited under section 44AB of the Act and filed within the due date. Since the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty cannot be levied u/s.271B of the Act. Further, a similar issue has been considered by the co-ordinate Bench of the Tribunal in the case of M/s. T P D 101 Uthangarai Milk Producers Co-operative Society Ltd.(supra), where on identical set of facts, penalty levied u/s.271B of the Act, has been deleted. The relevant findings of the Tribunal are as under: "...7. We have heard both the parties and perused the materials available on record and gone through the orders of the authorities below. The assessee supposed to have been filed audit report as required u/s.44AB of the Act, on or before 31.10.2015. However, such audit report has been filed on 05.03.2016, which is before the date of completion of assessment proceedings u/s.143(3) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, where an identical issue had been considered by the Court and held that for venial technical breach without any mala fide intention, penalty cannot be levied. The ITAT Cochin Bench in ITA No.411/Cochin/2018 vide order dated 05.02.2019 had held that once audit report has been made available before the AO, when the assessment proceedings were completed, then, there is no reason for levy of penalty. 8. In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that reasons given by the assessee for not filing tax audit report within due date comes under reasonable cause as provided u/s.271B of the Act, and thus, the AO is erred in levying penalty u/s.271B of the Act. Hence, we direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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