2004 (6) TMI 233 - AT - Income Tax

Summary

Issues:
Levy of penalty under section 271B of the IT Act for incomplete audit report.

Analysis:
The appeal concerned the objection raised by the assessee against the order confirming the penalty under section 271B of the IT Act by the CIT(A). The assessee had filed the return of income for the assessment year 1997-98 along with an audit report in Form No. 3CD, but without the audited trading account, P&L account, and balance sheet. The Assessing Officer (AO) initiated penalty proceedings under section 271B due to the incomplete submission. The assessee argued that section 44AB did not mandate the submission of audited balance sheet, trading account, and P&L account, and that the audit report in Form No. 3CD was filed on time, hence there was no default for penalty imposition. Additionally, the absence of these documents may render the return defective, but without a notice under section 139(9) from the AO, penalty could not be imposed. The audited documents were later provided during the assessment proceedings. The AO imposed the penalty without mentioning prior approval, and the CIT(A) upheld the decision.

Upon review, the ITAT agreed with the assessee's contentions. It was observed that the assessee had obtained and submitted the audit report in Form No. 3CD on time, meeting the requirements of section 139(1), and there was no violation of section 44AB. The failure to provide the audited balance sheet, trading account, and P&L account did not make the audit report incomplete or illegal, but could render the income return defective, necessitating an opportunity for rectification. As the audited documents were eventually furnished during the assessment, it indicated compliance with section 139(9). The tribunal concluded that the penalty under section 271B was unwarranted as the assessee had fulfilled the necessary obligations, and the revenue authorities were unjustified in penalizing for a non-existent default. Consequently, the penalty was canceled, and the order of the CIT(A) was set aside, allowing the appeal of the assessee.