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CIT, Meerut v. Shri Ajay Kumar Gupta - INCOME TAX REFERENCE No. 108 of 1997  RD-AH 1173 (29 April 2005)
INCOME TAX REFERENCE NO.108 OF 1997
Commissioner of Income-tax, Meerut. ....Applicant
Shri Ajay Kumar Gupta, Ghaziabad. ....Respondent
Hon'ble R.K. Agrawal, J.
Hon'ble Rajes Kumar, J.
The Income Tax Appellate Tribunal, New Delhi has referred to following two questions of law under section 256 (1) of the Income Tax Act, 1961, (hereinafter referred to as "the Act") for opinion of this Court.
"Whether on the facts and in the circumstances of the case, the ITAT was legally correct in holding that the delay in filing the audit report, but obtained within time could not be the case for imposing the penalty u/s 271-B of the I.T.Act ?"
The present Reference relates to the Assessment Year 1992-93.
Brief facts of the case are that the assessee was carrying on the business of medicines and filed return of his income on 04.03.1993 for Rs.39,120/- on total turn over of Rs.81,53,446/-. Since turn over was above Rs.40 lacs, assessee was required to get his account audited and file it alongwith return before the specified date, i.e. 31.10.1992 but the same was filed alongwith return on 09.03.1993. Assessing authority imposed the penalty under section 271-B of the Act for the alleged non-compliance of provisions of section 44-AB of the Act. Aggrieved by the penalty order, assessee filed appeal before Commissioner of Income-tax, which was allowed and the penalty was deleted. The said order of Commissioner of Income-tax was confirmed by the Tribunal in appeal filed by the revenue. Tribunal has held as follows:
"We have considered the rival submissions and have gone through the relevant material available on record. It is not in dispute that the assessee has filed this audit report alongwith the return, though it was obtained on 29.10.1992. This issue was considered by the Tribunal in the above cited cases wherein it was held that where the return was filed under section 139 (4) of the Act and it accompanying with the audit report, no penalty is leviable. Respectfully following that order, we do not find any justification to interfere in his order."
We have heard learned Standing Counsel on behalf of the Revenue. No one appears on behalf of the assessee respondent.
We find that this Court in the case of CIT Vs. Jai Durga Construction Co., reported in (2000) 245 ITR 857, held that prior to the amendment by Finance Act, 1995 w.e.f. 01.07.1995, the requirement was only to get the accounts audited before specified date and there was no obligation to furnish that audit report before the assessing officer before the specified date. There is no dispute in the present case that the audit report was obtained with the specified time.
Respectfully following the decision of this Court we answer the question referred to use in affirmative, i.e. In favour of the assessee and against the Revenue. There shall be no order as costs.
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