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C.I.T. v. M/S R.R. Enterprises Abu Lane - INCOME TAX REFERENCE No. 17 of 1998 [2005] RD-AH 1688 (19 July 2005)


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Court No.37

I.T.R. No.17 of 1998

Commissioner of Income-tax, Meerut vs. M/s.R.R. Enterprises, Abu Lane, Meerut.

Hon'ble R.K. Agrawal, J.

Hon'ble Rajes Kumar, J.      

The Income Tax Appellate Tribunal, Delhi has referred the following question of law under Section 256(1) of the Income Tax Act, 1961, hereinafter referred to as 'the Act' for opinion to this Court.

"Whether, on the facts and in the circumstances of the case the Tribunal was right in law in cancelling the penalty under sec. 271B on the ground that the same was not exigible in a case where the audit report under section 44-AB had been obtained on or before the specified date and the return of income filed by the assessee was not under section 139(1) or in response to a notice u/s 142(1), but a return filed u/s 139(4)?

The present Reference relates to the Assessment Year 1990-91 in proceeding arising out of imposition of penalty under Section 271-B of the Act.

Briefly stated the facts giving rise to the present Reference are as follows:-

The respondent-assessee firm filed return of its income for Assessment Year 1990-91 on 22nd July, 1991. The return was accompanied by audited report of the Chartered Accountant. The Assessing Officer noted that the respondent-assessee was required to get its accounts audited under Section 44-AB of the Act before the specified date which in this case was 31st October, 1990 and was also required to file such report along with its return within the time allowed under Section 139 (1) or in response to notice under Section 142(1) of the Act.  The Assessing Officer noted that the accounts of the respondent-assessee were audited on29.10.1990, whereas the same were filed with the return on 22nd July, 1991, which was beyond the time permissible under Section 139(1)/142(1)(i) of the Act. The Assessing Officer called upon the respondent-assessee to show cause. The respondent-assessee submitted its reply stating that the return having been filed under Section 139(4) and not under Section 139(1) or in response to notice under Section 142(1)(i), no penalty was leviable. Reliance was placed on the decision of the Delhi Bench of the Tribunal in the case of I.T.O. vs. Mahender Kumar, 42 I.T.D.384.  The Assessing Officer, however, rejected the explanation and levied penalty.  In appeal the Commissioner of Income Tax (Appeals) cancelled the penalty. The Revenue preferred an appeal before the Tribunal, which upheld the order of the Commissioner of Income Tax (Appeals).

We have heard Sri Shambhu Chopra, learned Standing Counsel for the Revenue.   Nobody has appeared on behalf of the respondents-assessees.

We find that the view taken by the Commissioner of Income Tax(Appeals), which has been upheld by the Tribunal, is in conformity with the decision of the Apex Court in the case of Commissioner of Income Tax v. Jai Durga Construction Co., (2000) 245 ITR 857. Thus, the Commissioner of Income Tax (Appeals) rightly deleted the penalty imposed under Section 271-B of the Act.

Respectfully following the aforesaid decision, we answer the question referred to us in the affirmative i.e. in favour of the assessees and against the Revenue.  However, there shall be no order as to costs.




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