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C.I.T. v. M/S Mohan Dairy Rampur Maniharan - INCOME TAX REFERENCE No. 60 of 1995 [2005] RD-AH 948 (4 April 2005)


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Court no.37

I.T.R. Number 60 of 1995

    Commissioner of Income Tax, Meerut


    M/s Mohan Dairy Rampur Maniharan, Saharanpur

Hon'ble R.K.Agarwal, J

Hon'ble Prakash Krishna, J

The I.T.A.T. Delhi has referred the following question under section 256 (1) of the Income Tax Act ( here in after referred to as the Act) for opinion to this Court.:

" Whether in view of the facts and circumstances of the case, the Income Tax  Appellate Tribunal was legally correct in confirming the order of the  Commissioner of Income tax (A) who cancelled the penalty of Rs.60,000/- imposed under section 271-B  ?"

The matter relate to the assessment year 1990- 91

The present reference arises out of penalty proceeding under section 271-B of the Act. The respondent assessee filed return of income along with audit report on 16-11-1990. The return was filed beyond the time prescribed by sub- section (1) of Section- 139 of the Act. In reply to the show cause notice it was stated that the respondent assessee was obliged to get its account audited on or before 31-10-1990, which infact, they did. The audit report was obtained within prescribed date i.e. before 31-10-1990. It is dated 30-10-1990. The I.T.O. levied penalty under section 271-B of the Act., which was set aside in appeal by the CIT ( Appeals). The said order has been confirmed by the Tribunal.

Heard learned Standing Counsel for the department. We find that the controversy stands concluded by a Division Bench of this Court in the case of CIT Vs. Gramin Sadhan (2000) 245 ITR 563 and CIT Vs.Jai Durga Construction Company (2000) 245 ITR 857. It has been held that under section 44- AB, as it stood during the assessment year under consideration, the assessee was required to get its account audited by the Accountant before the specified date. There was no obligation to furnish audit report before the assessing authority before the specified date. This obligation has been created by substituting the word " furnished by" for the words " obtained before" by the Finance Act, 1995 with effect from 1-07-1995. Thus prior to the amendment obligation of the assessee to whom under section 44- AB applied was merely to get the account audited and get the audit report before the specified date. In the present case, there is no dispute that the assessee complied with these requirement. Therefore we are of the opinion that in such circumstances no penalty under Section 271-B can be levied on the respondent.

We accordingly answer the question referred to us, in affirmative i.e. in favour of the assessee and against the Revenue. There will be however no order as to costs.

Dt . 4th April, 2005



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