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Cit v. Brijendra Kumar - INCOME TAX REFERENCE No. 65 of 1998 [2005] RD-AH 1284 (9 May 2005)


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Court no. 37



Commissioner of Income-tax, Meerut.. Applicant.


Sh. Brijender Kumar, Ghaziabad.         ...Respondent.


Hon'ble R. K. Agrawal, J.

Hon'ble Rajes Kumar, J.

The Income Tax Appellate Tribunal has referred the following question of law under section 256 (1) of the Income Tax Act, 1961 (hereinafter referred to as " Act") for the assessment year 1992-93 for opinion to this Court.

"1. Whether on the facts and in the circumstances of the case, the Honurable 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 271B of I. T. Act?"

The brief facts of the case are that the assessee filed his return of income on 29.3.1993 showing total turnover of Rs.88,92,607/- .  As per the provision of Section 44-AB, the audit report was required to be filed alongwith the return on or before the specified date i. e. 31.01.1992.  The same was, however, filed alongwith the return on 29.3.1993.  There is no denying the fact that the accounts were audited and report was obtained well within time.  The assessee's submission before the authorities below was that the return of income for the assessment year in question was filed under Section 139 (4) and no notice under Section 142 (1) was issued.  The A.O. however, rejecting the plea of the assessee imposed a penalty of Rs.44,463/- under Section 271/B of the Income Tax Act, 1961.  On Appeal, the CIT (A) cancelled the penalty levied by the A.O.  Aggrieved against the cancellation of penalty by the CIT (A), the Revenue came up in appeal before the Tribunal.  The Tribunal vide its order dated 30th June, 1997 dismissed the appeal of the revenue by hp holding the order of the CIT (A).

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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