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TMI Blog1998 (7) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... returns of income for the asst. yrs. 1990-91 and 1991-92 on 29th Dec., 1992, along with the audit reports under s. 44AB of the IT Act in response to notice under s. 148 of the IT Act, dt. 20th Nov., 1992, and served on the assessee on 20th Nov., 1992. In compliance with the summons under s. 131 a statement of the assessee was recorded. The AO was of the opinion after going through the facts of the case that the books of accounts of the assessee were not audited till 25th Nov., 1992 and no tax audit report under s. 44AB of the Act was issued till that date. He, therefore initiated penalty proceedings under s. 271B by issuing notice on 20th Nov., 1992 and serving the same on the assessee on the same date. The AO after taking the explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AB was issued by the Chartered Accountant was actually printed in 1992. According to him the AO should have called for the statement of the accountant of the assessee as well as the statement of the Chartered Accountant who has actually audited the books of accounts of the assessee under s. 44AB. The AO should have not recorded the statement of the Chartered Accountant to whom the books were given by the accountant of the assessee as per the reply of the assessee given in response to question No. 5 raised by the AO during the course of recording the statement of the assessee on 20th Nov., 1992, which is produced at p. 26 of the paper-book. According to the authorised representative this was the prevailing practice that the Chartered Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and address appear by way of a rubber stamp. Neither the capacity under which the Chartered Accountant has signed the audit reports has been mentioned. He invited our attention to the reply relating to question Nos. 4, 9 and 10 given by the assessee in the statement recorded on 19th Nov., 1992, which is appearing at p. 24 of the paper-book. To a straight question by the AO being question No. 4 where the name of the auditor was asked he immediately replied: Auditor name is Thiru Pakkiriswamy . In reply to question No. 5 as to for how many years the assessee has given his books of accounts to auditor Thiru Pakkiriswamy, he replied : I have given books of accounts for the year ended 1st April, 1990, to 31st March, 1991 and 1st April, 1991 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not seen him. I don t know his office also. Q. No. 9 : For the accounting 1st April, 1988 to 31st March, 1992 did your prepare P L a/c and if so produce the same. Ans. : The prepare the statements from 1st April, 1988 to 31st March, 1992, I have given my books to my auditor who has not given me the statements. Q. No. 10 : As per your sales-tax order the total turn over for the years 1988-89 is Rs. 16,91,985, 1989-90 Rs. 44,66,150 and 1991-92 Rs. 60,14,031. As the turnover exceeds 40 lakhs you have to get your accounts compulsorily audited under s. 44AB of the IT Act. If so where is the audited statements? Ans. : No, I have not received the auditor s certificate as required under s. 44AB. I have given the books to my auditor during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So I cannot produce the same today. Q. No. 9 : As per your reply given to me yesterday, it is clear that although you have given your books of accounts i.e. day book, Ledger for audit under s. 44AB for the asst. yrs. 1991-92, 1990-91 and 1992-93, you have not received audit report for the respective years. What is your explanation? Ans. : My accountant said that he had received the audit report. Since I was not aware of it, I had not seen the audit report. From the aforesaid statements it is apparent that the assessee has accepted that the books of accounts were handed over to his auditor Pakkriswamy of Nagapattinam in July, 1992, for tax audit. This fact has also been accepted by Pakkriswamy. But subsequently the audit reports signe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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