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TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 729
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....he same by this consolidated order for the sake of convenience. 3. First, we shall take up the appeal-ITA No. 331/Kol/2016 A.Y 2009-10 by M/s. Care Concern Hospital P.Ltd relating to confirmation of penalty of Rs. 42,887/- by the CIT-A imposed by the AO u/s. 271B of the Act. ITA No. 331/Kol/2016 A.Y 2009-10 by M/s. Care Concern Hospital P.Ltd 4. Brief facts of the case are that a special survey u/s. 133A of the Act was conducted at the business premises of the assessee on 27-01-2011 & 28-01-2011. During the survey proceedings receipt of Rs. 79,63,087/- was found for the A.Y under consideration. Therefore, notice u/s. 148 Of the Act was issued on 15-02-2011. In response to which, the assessee had filed its return on 22-03-2011 disclosing total income of Rs. Nil. Notices u/s. 143(2) and 142(1) of the Act were issued. In response to which, the AR of the assessee appeared and produced books of account and other relevant documents in support of the return as filed. The AO assessed the total loss Rs. 5,05,850/- and allowed carried forward vide his order dt. 27-12-2011 passed u/s. 143(3) of the Act. 5. Thereafter, the AO initiated penalty proceeding u/s. 271B of the Act for not gettin....
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....n discussed with the Ld. A/R of the appellant and the submission, in this regard, vide letter no.JNB/115/15-16 dt.15.12.15 is referred. The provision of Section 271B of the I.T. Act is reproduced below: "If any person fails to get his accounts audited in respect of any previous year or years relevant to an assessment year or {furnish a report of such audit as required under section 44AB}, the [Assessing} Officer may direct that such person shall pay, by way of penalty, a sum equal to one-half per cent of the total sales, turnover or gross receipts, as the case may be, in business, or of the gross receipts in profession, in such previous year or years or 0 sum of [one hundred fifty thousand rupees}, whichever is less. 5.2. It may be seen that there is 'no ambiguity and the onus to get the accounts audited and furnish the report of the audit, as required vide Section 44AB of the IT. Act, to the A.O. However, if any person fails to comply then the A.O. may direct that such person shall pay by way of penalty, a sum as provided in the Act.' In the instant case, the assessee was to get its accounts, for F.Y.2009-10 before the specified date and furnish by that date the r....
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....ies but Assessing Officer was never informed about any reason other than Circular No.9 of 2010. But the said circular is not applicable in the instant case. In view of this, the penalty u s.271B of the Act is confirmed." 8. Before us the ld.AR of the assessee has reiterated his same submissions made before the CIT-A and argued there was a delay of 18 months in getting the accounts audited due to dispute with the previous auditor. He also submits that the AO fastened the responsibility of getting the accounts audited by the assessee in pursuance of (a), (b) & (c) of section 44AB of the Act, but the assessee does not fall under (a), (b) & (c) of section 44AB of the Act as the accounts of the assessee have been audited as per provisions of Companies Act, 1956 and therefore, the (a), (b) & ( c) of section 44AB of the I.T Act, 1961 does not attract in imposing the penalty, as it was protected by 2nd proviso of section 44AB of the Act. Before us the assessee filed a detailed statement of filing the audit & tax audit and argued that for the A.Y 2009-10 , the specified date to furnish tax audit was on 30-09-09, which was completed on 15-03-2011 and there was a delay of 18 months. The AO d....
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....inted a new auditor, M/s. B.S. Murthy & Associates on 22-12-2010. From pages 5,7, 10,11 & 12, clearly shows that the assessee had disputes with earlier auditor, M/s. P.Ghosh & Associates and lodged a complaint to Institute of Chartered Accountants of India. Thereafter, the assessee withdrew the same. It establishes that due to such disputes with earlier auditor, there was delay in auditing the books of account required u/s. 44AB of the Act for the A.Y under consideration. On perusal of statement of date of audit/tax audit as filed by the assessee before us, we find that the assessee started its business from the F.Y 2007-08 relevant to A.Y 2008-09 and the audit was completed on 02-09-2008 i.e within time. We note that for the A.Y under consideration the assessee required to file the tax audit report by 30-09-2009. However, due to such disputes and delay, the same was filed by the assessee on 15-03- 2011 by a new auditor, M/s. B.S. Murthy & Associates, who was appointed on 20-12-2010. Therefore, it clearly shows that due to disputes between the assessee with its earlier auditor and resignation thereof, the same (audited accounts) was filed before the AO belatedly. On perusal of the ....
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.... the control of the assessee. The assessee further contended that the AO did not issue notice either in section 139 or 142 of the Act requiring the assessee to file return of income within due date. The AO by assuming his jurisdiction u/s. 148/147 of the Act initiated the penalty proceedings u/s. 271F of the Act. In response to which, the assessee filed its return within due date fixed as per notice issued u/s. 148 and contended that there was no delay in filing the return of income and as such the assessee did not have any liability to furnish the return of income u/s. 139(1) of the Act. 15. The CIT-A considering the submissions of the assessee confirmed the action of the AO in levying the said penalty by observing as under:- 5. Decision: The relevant issue, in respect of the penalty u/s.271F, has been discussed with the Ld,A/R of the appellant and the submission, in this regard, vide letter no.JNB/68/1S-16 dt.26,08.15 is also referred. 5.2 The provisions of the I.T. Act, in respect of penalty u/s,271F, is very clear as the dates for the filing of return has been duly fixed and know to the appellant. However, the appellant had not filed return of income in time. Sin....
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.... in right perspective and mechanically confirmed the penalty imposed by the AO. 17. The ld.DR submits that the assessee did not appear before the AO to put forth his arguments and objections in levying the penalty. The assessee altogether has taken a new plea before the CIT-A, which is not tenable. In support of his contentions, relied on the order of the AO and the CIT-A. 18. Heard rival submissions and perused the material available on record. It is observed from the assessment order dt. 27-12-11, the assessee filed its return of income by declaring total income of Rs. Nil. The AO determined the loss at Rs. 5,05,853/- against the claim of loss of Rs. 8,53,487/- vide his said order u/s. 143(3) of the Act. The argument of the ld.AR was that the assessee running its business in losses and there was no liability to pay tax and as such there was no loss to the revenue. It is also observed from the record, that the assessee filed above said return of income only in response to the notice issued u/s. 148 of the Act. The ld.AR also submitted before us as discussed in the aforementioned paras that the delay in complying the statutory requirements was caused to due to disputes with the e....
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....y 20. The AO initiated the proceedings u/s. 271(1)(b) of the Act for non submissions of specific documents and evidences sought u/s. 142(1) of the Act. The AO imposed penalty of Rs. 10,000/- for non-compliance of notice issued u/s. 142(1) of the Act. 21. Before the CIT-A the assessee contended that the AO failed to make out specific charge showing default in the notice issued u/s. 271(1)(b) of the Act. The CIT-A observed that the assessee could not submit any reason for non compliance of the said notice before the AO and accordingly, the CIT-A confirmed the action of the AO in imposing the same as under:- The A.R. has submitted that, "the assessee entrusted appearance/attendance in hearing before the AO to his authorized representative by power of Attorney. The assessee was under the impression that the hearings were being appropriately attended." It is pertinent to mention that the onus to ensure compliance is on the assessee and assessee's claim that AR is responsible is not correct. The AR also argued that "the notice conveying of hearing penalty did not contain exactly for which default u/s.271(1)(b), the penalty is being proposed to be levied." But the Ld. AR, has not ....
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....as confirmed by the CIT-A and it is justified. 24. Heard rival submissions and perused the material on record. We find that the assessment order dt. 29-12-2011 passed u/s. 147/143(3), wherein we noticed that there was no allegation of non compliance was made by the AO. It is observed that the assessee through his AR complied with the notice and books and other relevant documents were filed, which were examined by the AO. We find that the ld.AR has rightly pointed out that there was no allegation by the AO in not complying with the notice. We find that the facts and circumstances in the case of Delhi Tribunal are similar with that of present case and the same is reproduced herein below: 5. We have heard the rival submissions and perused the material on record. We find that the instant appeal is squarely covered by the decision of the Co-ordinate Bench of ITAT Delhi in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan trust vs ACIT 5 DTR 429 (Delhi Tribunal) wherein the Coordinate Bench in paras 2.4 and 2.5 has held as under:- I.T.A. No. 738/Del/2014 Assessment Year 2010-11 "2.4 Coming to the issue of recording of satisfaction, it may be mentioned that mere initiation of....