9911796707
TMI Blog2005 (12) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... the return within due date of filing of the return. The AO observed that the audit report filed by the assessee is unsigned. Accordingly, the AO issued show-cause notice as to why penalty proceedings under s. 271B not be initiated as the said audit report filed pursuant to s. 44AB of the Act is not a valid tax audit report. The AO has stated that the assessee filed a reply vide letter dt. 20th Sept., 2004 as under: "There is no provision in the Act for levy of penalty due to having filed unsigned report of the chartered accountant especially when it bears his seal. It is possible that one may hold that filing of unsigned balance sheet means no balance sheet is filed but this lapse of not putting signature by the chartered accountant seems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within due date. He submitted that the assessee filed the duly signed tax audit report of the same tax auditor during the course of assessment proceedings. He submitted that there was a reasonable cause as the assessee did not notice that the copy of tax audit report filed with the return was unsigned. He submitted that it was a mistake through oversight and there was no intentional non-compliance of the provision of the Act. He submitted that the penalty imposed under s. 271B of the Act be cancelled, as it was only a technical now compliance of s. 44AB of the Act. 6. On the other hand, the learned Departmental Representative strongly justified the orders of the authorities below. He submitted that the tax audit report obtained under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is observed that the assessee obtained tax audit report before the due date and also filed a copy of it along with the return within the time. However, the assessee filed an unsigned copy of the tax audit report. The assessee has contended that it was a mistake through oversight, occurred on the part of the accountant. The assessee has submitted that when this lapse was brought to its notice, a signed copy of the same tax audit report was filed before the AO before the assessment was completed. However, the assessee could not substantiate its submissions that a signed report of the same tax audit report was filed before the AO during - the assessment proceedings. 9. We are of the considered view that if the assessee has filed a copy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rudence acting under normal circumstances without negligence or inaction or want of bona fides from furnishing the return in time. 10. In the case before us, we are of the considered view that the filing of the unsigned tax audit report along with the return filed by the assessee was due to a mistake provided the assessee has filed the signed copy of the same tax audit report when the said mistake was pointed out by the AO during the course of assessment proceedings. We further are of the considered view that the word "shall" used in s. 44AB of the Act is directory in nature. The Hon'ble Delhi High Court has held the word "shall" is ordinarily mandatory, but sometimes it is not so, if the context or intention otherwise demands. It was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. 11. Considering the provisions of s. 44AB of the Act and also the fact that it is procedural in nature, we are of the considered view that the word "shall" used in s. 44AB of the Act is to be construed as directory. Reliance placed by the learned Departmental Representative on the above case namely, Prem Nath Motors (P) Ltd. is not applicable to the facts of the case before us as s. 271B of the Act provides that the AO may impose penalty if there is no reasonable cause shown by the assessee. Therefore, we hold that if the assessee had filed the duly signed copy of the same tax audit report during the course of assessment proceedings, it is a technical and unintentional non-compliance of not enclosing a duly signed copy of the tax audi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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