TaxTMI 
TaxTMI 
2004 (3) TMI 362
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....levied the penalty for non-filing of the audit report along with return. The penalty was levied by the ITO for not obtaining the audit report as required under s. 44AB of the Act by the assessee within the stipulated time. The case of the assessee is that the audit report dt. 30th June, 1988, was obtained and as such it had complied with the statutory obligation envisaged under s. 44AB of the Act. According to the learned Authorised Representative, levy of penalty under s. 271B is not tenable in the eyes of law in this case because it was based on surmises and conjectures, since the assessee had obtained the audit report in time but failed to file the same along with return. According to the learned Authorised Representative, the only techn....
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....ed the statement of Sh. Pawan Kumar, partner, on 17th Sept., 1991, wherein he stated that the audit of the firm's accounts was got done by the Munim Sh. Sunder Singh, who was no longer in India and had gone to Nepal. The ITO completed the best judgment assessment on 18th March, 1994, and the statement of the auditor was also recorded by the ITO during assessment proceedings, wherein he confirmed that he had audited the accounts as per the records given. It is a fact that notice under s. 48 was issued to the assessee by the ITO after gathering knowledge from the sales-tax Department, as mentioned above. The assessee produced the audit report dt. 30th June, 1988, which, according to the assessee, was got done within the stipulated time but th....
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....another way that he was not definite about the audit report if it was not obtained within the stipulated time or he was levying the penalty only for not filing of the same along with return. This is undisputed fact in this case that the assessee did not want to file the return, considering the income below taxable limit. The only fact now remains is whether the assessee had obtained the requisite report or not. The case of the Department is that the assessee did not obtain the report at all and even if the report dt. 30th June, 1988, is considered to be genuine, it is ante-dated. But we are unable to accept the ITO's version because he cannot be allowed to blow hot and cold together. Either he is to stick to the fact that no audit report wa....