TaxTMI 
TaxTMI 
2017 (5) TMI 1165
X X X X Extracts X X X X
X X X X Extracts X X X X
....Rs. 1 lakh. 2. The only issue to be decided in the appeal is as to whether the Ld. CIT(A) was justified in upholding the levy of penalty u/s. 271BA of the Act in the facts and circumstances if the case. 3. The brief facts of this issue is that the assessee filed the Return of income electronically on 14.10.2010 for the assessment year 2010-11 and report in Form 3CEB was not filed by the assessee along with the Return of income and the same was not filed before the due date on filing the Return of income u/s. 139(1) of the Act. The case was selected for scrutiny and in view of the international transactions carried out by the assessee, the case was referred to Ld. Transfer Pricing Officer (TPO) and the Ld. TPO passed an order u/s. 92CA(3) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rn of income. These arguments were not appreciated by the Ld. CIT(A) and the penalty levied for the sum of Rs. 1 lakh u/s. 271BA of the Act was upheld by the Ld. CIT(A). Aggrieved, the assesssee is in appeal before us on the following grounds: "1. The order of The Commissioner of Income Tax (Appeals) 8, Chennai dated 31.03.2016 in I.T.A.No.03/2012-13 for the above mentioned Assessment Year is contrary to law, facts, and in the circumstances of the case. 2. The CIT (Appeals) erred in confirming the levy of penalty u/s 271BA of the Act for the belated filing of Form NO.3CEB without assigning proper reasons and justification. 3. The CIT (Appeals} failed to appreciate that the provisions of section 271BA of the Act had no application to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....c facts of the case in terms of sequence of events which are as below: 02.09.2010 Date of obtaining the audit report in Form 3CEB from the Chartered Accountant 30.11.2010 Due Date of filing the return of income 14.10.2010 Date of filing the return of income 20.01.2012 Date of filing Form 3CEB before the Ld. TPO 22.01.2014 Date of order u/s 92CA(3) by Ld. TPO 18.03.2014 Date of order by the Ld. AO u/s 143(3) of the Act The Ld. AR argued that the audit report in Form 3CEB was obtained from the Chartered Accountant way back on 02.09.2010 which was much before the due Date of filing the return of income for the assessment year 2010-11. He argued that as per the provisions of 271BA of the Act on a plain reading of the same s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Form 3CEB even when it was demanded by the Ld. AO in the scrutiny proceedings. The same was filed before the Ld. TPO only on a later date. Moreover, the provisions of section 271BA of the Act in its unambiguous language warrants levy of penalty as the automatic measure if the audit report is not filed within the stipulated time 4. We have heard the rival submissions and perused the material available on record. The various sequences of events together with its respective dates as stated herein above are not in dispute. We find that in the instant case that the assessee had made available the audit report in Form 3CEB on 20.01.2012 which was much before the completion of proceedings by the Ld. TPO on 22.01.2014. For the sake of convenienc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion is so construed as to make the filing of the audit report along with the return mandatory it would discriminate between companies on the one hand and other assessees on the other. It has been held by the Supreme Court in K.P. Varghese vs. ITO (1981) 24 CTR (SC) 358 : (1981) 131 ITR 597 (SC) that a section of the Act should not be so construed as to make it unconstitutional. Secondly, there is no stipulation as to the time when the audit report should be filed, except that it should be filed along with the return. Since there is a provision for extending the time for filing the return, all that the assessee was required to do was to delay the filing of the return until the audit report was made available. As the Tribunal has observed, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot every provision of a taxing statute that will fall under the rule of strict interpretation. The question whether a certain provision of law is directory does not fall to be decided on different standards because it is found in a taxing statute. There is no rule that every provision in a taxing statute is mandatory. The strict construction that a citizen does not become liable to tax unless he comes within the specific words of a statute is a different proposition. That a person cannot be taxed on the principle of estoppel does not admit of much argument." 6. We, therefore, agree with the view of the Tribunal that the provisions of s. 80J(6A) of the IT Act were not mandatory and we answer the questions in the affirmative and against th....