9911796707
TMI Blog1980 (3) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... 03,735, though the demand was subsequently corrected to Rs, 1,94,325. However, in the quantum appeal the income was reduced to Rs. 1,42,540 vide ITA No. 1351 (Mds)/74-75 dt. 31st March, 1976, to which one of us was a party. The resultant tax was also reduced to Rs. 94,635. On the basis of the final assessment, the penalty leviable worked out to Rs. 33,532 as against the penalty to the extent of Rs. 89,390 levied by the ITO. Hence, the scope of this appeal gets narrowed down from Rs. 89,390 to Rs. 33,532. 3. The explanation of the assessee was uniform. It was stated the assessee had handed over the account books to one Shri N. Vaidyanathan, who was a qualified IT practitioner assisting the assessee for all the years. It is stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... professional preoccupation and due to ill health, I could not get the statements ready earlier. Finally I got the return and statement ready and filed them with ITO in Oct., 1973. (4) I hereby confirm that the books of account for the period ending with 30th March, 1971 and vouchers were entrusted to me in September 1971 and yet the delay in the matter of preparation of statements occurred with circumstances beyond my control and the delay was neither attributable to Mr. Annamalai Nadar, nor wilful or deliberate." After perusal of the affidavit this Tribunal in ITA No. 1521 (Mds) / 76-77 dt. 25th Oct., 1977 had called for a remand report "to verify the correctness and varacity of the statement given by the previous auditor". One of us w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplicated matters and it was natural that the assessee had to wait for the auditor's help. It was the practice for the past many years. He also relied upon the decision of the Madras High Court in the case of V.L. Dutt (1), which held that mere technical branch of the provisions could not justify penalty. The ld. Deptl. Representative in reply contended that the auditor's delay should be construed as assessee's delay, since the auditor was acting merely as an agent. He claimed that the assessee was served with a reminder on 19th Dec., 1972 and that the assessee himself asked for extension of time on 15th Oct., 1971 only for three weeks. All these clearly show that he was not justified in leaving the matter entirely to his auditor as now all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after his misadventure. He claimed that a tax payer could do no better. He also claimed that the fact that the auditor has admitted his fault in clear terms and also attributed this to his illness, should take this case away from the facts of the case relied upon by the Deptl. Representative. 5. We have carefully considered the records as well as the arguments. Though the penalty levied by the ITO is Rs. 89,130, the dispute now should actually be treated as being limited to Rs. 33,532 as default for the entire period of 23 months on the basis of the reduced income before the Tribunal. The assessee has given a consistent and uniform explanation. He entrusted the matter to an auditor, who had delayed the preparation of the return. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default. In the English case cited above, the undisputed facts in that case show "a lamentable history". There were as many as six notices issued to the assessee. It was found in that case that since the first penalty was levied on 29th March, 1968 and that the assessee as well as the Chartered Accountant had both received subsequent notices, the assessee did not have any excuse to rely on his Chartered Accountant by November 1970 what the further penalties came to be levied. It is under these circumstances that the penalties were confirmed and it was observed that it was not necessary to discuss the question whether the assessee s own agent's incompetence can be pleaded as an excuse. In this case we find that the assessee's return itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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