AI Drafter 
TaxTMI 
TaxTMI 
2016 (8) TMI 595
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....ssessment, i.e. 15-12-2011 and has not attended before him for which he had to complete the assessment exparte. The AO asked the assessee to explain as to why penalty u/s.271B should not be levied for violation of the provisions of section 44AB of the Income Tax Act, 1961. It was explained by the assessee that the return was filed on 02-09-2009 along with the tax audit report u/s.44AB vide Acknowledgement No. 85832420. It was submitted that the assessee had uploaded the return of income with tax audit report on 02-09-2009. The Xerox copy of the audit report dated 20-05-2009 was filed before the AO and it was requested to drop the penalty proceedings initiated u/s.271B of the I.T. Act. 4. However, the AO did not accept the above contention of the assessee. He observed that the assessee has never filed the particulars of the tax audit report as prescribed. From the verification of the uploaded return, he noted that in his answer to Question - "Are you liable for audit u/s.44AB? the assessee has categorically marked in the box provided as (X), i.e. NO. The assessee has not given the name of the auditor signing the tax audit report, his Membership Number, name of the auditor and PAN....
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.... of tax audit report alongwith the return of income or filing of the same before due date of return u/s 139(1) is done away with. In this regard, a Circular No.3 of 2009 dated 21/05/2009 has been issued as a measure of precaution providing that the particulars about Tax Auditor and Tax Audit are to be furnished in the return of income to be filed by the assessees. The appellant has failed to furnish the said information in the return of income. Therefore, I am of the considered view that the AO. is justified in levying penalty of Rs. 1,00,000/- u/s 271B of the Act. I am also of the considered view that the appellant has failed to furnish the tax audit report before the AO. without any reasonable cause within the meaning of provisions of section 273B of the Act. Considering the totality of the facts, the above discussion and reasons mentioned by the A.O. for levying penalty u/s.271B, the penalty of Rs. 1,00,000/- levied by the A.O. u/s.271B of the Act is confirmed." 6. Aggrieved with such order of the CIT(A) the assessee is in appeal before us. 7. The Ld. Counsel for the assessee submitted that the assessee has got the audit report on 28-05-2009 and paid the self assessment....
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....ort on 28-05-2009 before the AO during the course of penalty proceedings. It is also a fact that the assessee has uploaded the return on 02-09-2009 and has also paid self assessment tax on 26-08-2009, a fact stated by the Ld. Authorised Representative during the course of hearing before us and not controverted by the Ld. Departmental Representative. We therefore find some force in the submission of the Ld. Counsel for the assessee that the assessee has got his accounts audited u/s.44AB much before the specified date which in the instant case is 30-09-2009. In our opinion, had the accounts not been audited, the assessee could not have determined the self assessment tax and paid the same on 26-08-2009 and could not have uploaded the return on 02-09-2009 especially when there is no finding by the AO that the figures of the audited accounts do not tally with the figures of the uploaded balance sheet and profit and loss account. There may be certain errors in not filling up certain columns in the uploaded return but that itself cannot be a ground to conclude that the assessee has not got its accounts audited before the specified date especially when the AO has not obtained any material ....
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....he I.T. Act. 14. Before CIT(A) it was submitted that although there was no compliance on 15-09-2010, however, the assessee attended the office of the AO on 18-05-2011 at 10.30 am but the AO did not reach the office from Aurangabad. Similarly, on 05-12-2011 the advocate to whom the notice was sent was busy in marriage function of his son till 30-11-2011 and on 05-12-2011 his younger brother was detected with brain cancer for which had to go to Mumbai for operation on 10-12-2011. 15. However, the CIT(A) was not convinced with the above arguments advanced by the assessee. He observed that the contention of the assessee are not supported by documentary evidence. The assessee should have obtained the adjournment or when he has attended, he should have filed written letters to the AO about the fact of attendance on the date of hearing or on the date on which the compliance was required. Therefore, he held that the assessee has not proved the reasonable cause for non compliance of notice as envisaged by provisions of section 273B of the I.T. Act. He accordingly confirmed the penalty levied u/s.271(1)(b) of the I.T. Act. 16. Aggrieved with such order of the CIT(A) the assessee is ....