9911796707
TMI Blog2000 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... is not covered by the decision of this Bench dt. 29th June, 2000, rendered in ITA No. 2480 (Jp) of 1994, for asst. yr. 1993-94 in Asstt. CIT vs. M/s Shankerlal Agarwal Co. He has contended that the audit report though obtained on 16th Aug., 1991, was not furnished along with return. He has contended that the assessment under s. 143(1) was completed on 30th Sept., 1991. He has contended that the AO initiated proceedings for penalty under s. 271B on 10th Sept., 1992, and it was then that the audit report under s. 44AB was filed by the assessee on 10th Sept., 1992, itself. He has also contended that prior to 10th Sept., 1992, the AO had issued notices twice and on each of the two earlier dates the assessee failed to file the audit report whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this Bench in respect of s. 139(6A) in the above referred decision. He has also contended that apart from the above legal lacuna in the instant case, the assessee has also pleaded reasonable cause for there being a mistake of assessee's counsel. He has contended that the audit report got detached from the return in the office of the assessee's counsel and was though mistake placed in the office file of the assessee's counsel and so it could not be furnished along with the return. He has contended that for the mistake of the counsel the assessee could not suffer. He has contended that the assessee's counsel's mistake constituted a reasonable cause. He has cited the following decisions in support of his contention and has also furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn shall require the furnishing of audit report. As such in the situation postulated under sub-s. (6A), or for that matter, being considered by this Tribunal in para 6 on pp. 4 and 5 of the above referred decision dt. 29th June, 2000 the requirement for furnishing the audit report arose from the return itself and not independently. We may however, make the legal position regarding the requirement of issuing notice under s. 139(9) and on failure thereof the resultant violation of principle of natural justice, further clear that the position with respect to a requirement in sub-s. (6A) of s. 139, or for that matter, with respect to a requirement arising from the return itself is on a different footing from the situation wherein the requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt and the said requirement may not thereafter have any material impact. In the instant case the AO did not consider the return to be defective and rather proceeded further with the return and did issue intimation under s. 143(1). Besides, the return filed in the instant case was under s. 139(1) and in the situation of a return being filed under s. 139(1) it was the provision of s. 271B which provided for the requirement of filing of the audit report under s. 44AB along with the return which was independent of the requirement of the return itself as postulated in s. 139. Here we may incidentally also note that cl. (e) of Explanation below sub-s. (9) of s. 139 speaks of the copy of the auditor's report and not the audited report itself, thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal before us, being the counsel hailing from the same office and raising contention attributing the mistake to the counsel, we may treat the mistake as having been claimed/owned by the assessee's counsel. As such considering all the facts and circumstances of the case together with the legal position as emanating from the cited decisions as also the fact in particular that the learned CIT(A) has, on consideration of facts, taken the view of treating reason for the said failure to be a reasonable cause and has cancelled the penalty, we feel persuaded to view that the assessee was prevented to furnish the audit report along with return due to a reasonable cause. In the circumstances, we find the impugned order of the learned CIT(A) cancelli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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