2024 (6) TMI 537

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.... Act, 1961 [hereinafter referred as 'the Act']. 2. Aggrieved by the order of the lower authorities, the assessee is in appeal before us by raising the following grounds of appeal:- 1. On facts and circumstances of the case, the authorities below have erred in upholding the levy of penalty of Rs. 1,50,000/- u/s 271B of IT Act ignoring the fact that the same has been initiated and completed without complying with provisions of sec 271B of IT Act and therefore the penalty of Rs. 1,50,000/- imposed needs be deleted. 2. On facts and circumstances of the case, the authorities below have erred in upholding the levy of penalty of Rs. 1,50,000/- u/s 271B of IT Act ignoring the fact that above penalty order has been passed without taking prior a....

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....s of Rs 43,20,090/- and allowed the depreciation loss of Rs. 5,52,08,552/-to carry forward. The AO has directed the assessee company to file the Tax Audit Report u/s 44 AB of the Act in Form No. 3CB and 3CD but he has failed to file the audit report u/s. 44AB of the Act on the stipulated date of filing the audit report, after that penalty proceeding under Section 271B was initiated. The order of penalty levied of Rs. 150000/- against the assessee was passed on 15-03-2022. 4. Upon assessee's appeal the Ld. CIT(A) confirmed the order under section 271B of the Act on the pretext that assessee could not submit any reasonable cause for not furnishing the audit report within the due date before the appellate authority. 5. Before us at the outse....

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....ted time limit even than he was not succeed to file the audit report in appeal which shows that he was failed to get accounts audited. He has not submitted any reason not to submit the audit report. The assessee has committed two defaults which were mentioned in the notice firstly had failed to got accounts audited, secondly had not submitted the audit report as required u/s 44B of the Act. Assessee has not given any reason why he has not submitted the audit report. The authority relied by the assessee is distinguishable because in that case assessee had filed the audit report with plausible reasons of delay but in instant case assessee has failed to give the reasons for not filing the audit report. 10. It is submitted that penalty order h....

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....essee has been heard, or has been given a reasonable opportunity of being heard." [(2) No order imposing a penalty under this Chapter shall be made- (a) by the Income-tax Officer, where the penalty exceeds ten thousand rupees; (b) by the Assistant Commissioner [or Deputy Commissioner] where the penalty exceeds twenty thousand rupees. except with the prior approval of the [Joint] Commissioner.]" 16. From the perusal of the penalty order it is evident that it was not mentioned in the penalty order that was passed with the prior approval of the Joint Commissioner. Ld DR is unable to show that the prior approval was obtained before passing the penalty order. In the case Sagar Dutta vs CIT (2014) 44 taxman.com 311 (Cal) the Calcutta Hig....