2019 (5) TMI 186

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.... 2. The delay in submitting the audit report was only 2 months and 10 days. We rely on the decision in the case of Hindustan Steel Ltd. v. State of Orissa (1972) 83 ITR 26 (SC) wherein the Hon'ble Apex Court has held as under :- Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty when there is a technical or venial breach of the provisions of the Act. 3. The appellant was under a treatment for intervertebral disc prolapse for which a medical certificate was produced dated 14.04.2008 during the assessment proceedings. The appellant was advised bed rest for 6 months and was undertaking internal medicine after the said treatment. Duri....

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....hed along with the return, the assessee had turnover of Rs. 2,96,18,079 during the relevant assessment year. As the turnover of the assessee's business exceeded Rs. 40 lakh and since the assessee did not get his books of account audited u/s 44AB of the I.T.Act before the specified due date, the Assessing Officer, after considering the explanation of the assessee imposed penalty u/s 271B of the I.T.Act amounting to Rs. 1,00,000, vide order dated 28.06.2013. 4. Aggrieved by the levy of penalty u/s 271B of the I.T.Act, the assessee preferred appeal to the first appellate authority. The CIT(A) dismissed the appeal of the assessee. The CIT(A) was of the view that there was no reasonable cause as mandated u/s 273B of the I.T.Act, and theref....

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....mitted a technical venial breach, which does not create any loss to the exchequer as the audit report was available to the Assessing Officer well before the completion of the assessment proceedings. On identical facts, the Cochin Bench of the Tribunal in the case of Johns Biwheelers v. ACIT [(2019) 70 ITR (Trib.) 325 (Cochin)] had deleted the penalty imposed u/s 271B of the I.T.Act. The relevant finding of the Tribunal reads as follows:- "7. We have heard the rival submissions and perused the record. In this case, the assessee was required to get his books of account audited and filed along with the return of income u/s. 44AB within the due date of 30/09/2013 for the assessment year 2013-14. However, the audit report was furnished ....