2008 (7) TMI 532 - HC - Income Tax

Penalty- 1.Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that no penalty is imposable under section 271B for non-compliance with the provisions of section 44AB on the ground that the returns were filed belatedly neither under section 139 nor on a notice under section 142 of the Act? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in deleting the penalty without giving a finding of fact as to whether the tax audit report had been obtained within the prescribed time by the assessee? Held that- assessee own case involving similar question of law was decided in against the revenue. Thus the Tribunal is right in holding that no penalty was imposable u/s 271B of the Act for non compliance with the provision of section 44AB on the ground that the return was filed belatedly. Thus dismiss the appeal.

Summary

Issues:
1. Whether the Tribunal was correct in holding that no penalty is imposable under section 271B for non-compliance with the provisions of section 44AB?
2. Whether the Tribunal was right in deleting the penalty without determining if the tax audit report was obtained within the prescribed time by the assessee?

Analysis:
1. The High Court examined the issue of penalty under section 271B for non-compliance with section 44AB provisions. The court referred to a similar case for the assessment year 1993-94 where the appeal was dismissed against the Revenue. The court emphasized that penalty under section 271B is applicable for failure to get accounts audited and obtain a report along with the return filed under section 139(1) or in response to a notice under section 142(1). In this case, the return was filed belatedly, not under section 139 nor in response to a notice under section 142, leading to the conclusion that no default could be established under section 44AB. The court held that since the accounts were audited, and the audit report was obtained, albeit filed along with the belated return, penalty under section 271B cannot be imposed.

2. The court further considered whether the Tribunal was justified in deleting the penalty without ascertaining if the tax audit report was obtained within the prescribed time by the assessee. The court reiterated that the penalty under section 271B is contingent upon obtaining the audit report along with the return filed under section 139(1) or in response to a notice under section 142(1). As the return in question was filed belatedly and not in accordance with the specified provisions, the court upheld the Tribunal's decision to delete the penalty. The court's decision was influenced by the previous judgment in a similar case for the assessment year 1993-94, where the appeal against the Revenue was dismissed, reinforcing the interpretation that penalty under section 271B hinges on compliance with the statutory requirements for filing returns and obtaining audit reports within the specified timelines.

3. Ultimately, in light of the precedent set by the previous decision of the court and the interpretation of the relevant statutory provisions, the High Court dismissed the appeal, upholding the Tribunal's decision to delete the penalty. The court concluded that since the accounts were audited, and the audit report was obtained, albeit filed along with the belated return, the imposition of penalty under section 271B was not warranted. The appellant's arguments were deemed inconsistent with the statutory framework, leading to the dismissal of the appeal without costs.