9911796707
TMI Blog2023 (5) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 ["Act" in short]. 2. Brief facts of the case are that the assessee has filed its return of income on 20.09.2018 for the assessment year 2018-19 declaring income at Rs.. NIL, and the same was processed under section 143(1) of the Act by CPC Bangalore. Thereafter, the case of the assessee was selected for assessment through CASS on the reason "non filing of audit report". After following due procedures and considering the submissions of the assessee, the Assessing Officer has completed the assessment under section 143(3) r.w.s. 143(3A) & 143(3B) of the Act dated 09.04.2021 by assessing the income of the assessee at Rs..NIL. 3. Subsequently, penalty proceedings have been initiated under section 271B of the Act for delayed filing of audit r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that the assessee's turnover in the year under consideration were Rs..20,37,43,616/-. The assessee was required to get his accounts audited under section 44AB of the Act and filed within the due date. Since the assessee has not filed the tax audit report under section 44AB of the Act before the due date, the Assessing Officer levied penalty of Rs..1,50,000/- under section 271B of the Act, which was confirmed by the ld. CIT(A)(NFAC). Before us, by assigning reasons for the delay that the appointment of Statutory Auditor was not in the control of the assessee and the C & AG has appointed the Statutory Auditor on 10.08.2017 and the Statutory Auditor accepted the audit by 27.03.2019. It was submitted that the audit report under section 44A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venial technical breach without any mala fide intention, 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of P.Senthil Kumar v. PCIT reported in 416 ITR 336, 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 erre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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