9911796707
TMI Blog2014 (4) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case are that assessee had filed its return of income declaring a loss of Rs. 4,30,01,359/- on 30th September, 2009. Subsequently, a revised return was filed by the assessee at a loss of Rs. 3,39,83,024/- on 31st March, 2011. The assessment was completed at a total loss of Rs. 3,09,54,039/-. 4. The AO noticed that the statutory auditors M/s BSR & Associates, Gurgaon, signed the accounts only on 17th November, 2011 (correct date as per assessee's counsel is 27th November, 2011) while the revised return was filed on 31st March, 2011. The AO further observed that assessee explained that due to certain differences among the stakeholder and the Auditors, the signing of the account was delayed. He did not accept the assessee's content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Before ld. CIT(A) the assessee had advanced two fold contentions: a. Since the statutory audit of the company got completed on 27th November, 2011 (wrongly mentioned as 17th November, 2011), therefore, there was reasonable cause for not furnishing the tax audit report in the prescribed form. b. In the alternative it was submitted that assessee had obtained Tax Audit Report on 30th September, 2009 for the accounts of the previous year ended 31st March, 2009. This tax audit report in Form 3CB with Annexure in a prescribed Form 3CD was duly submitted to the AO during the proceedings and was not rejected by her. 5.1 Ld. CIT(A), however, held that there was no reasonable cause for failure of comply with the provisions of section 44AB. He rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the said proviso, the assessee was required to furnish the report in form 3CA and could not submit the report in form 3CB. She further referred to Rule 6G of the Income Tax Rules which deals with the report of audit of accounts to be furnished u/s 44AB and submitted that since the assessee was required to get its account audited under the Companies Act, therefore, audit report had to be furnished form 3CA. 8.1 Ld. CIT(DR) submitted that by furnishing report in form no. 3CB the assessee cannot escape the penalty for not furnishing the report in form 3CA. 8.2 We have considered the rival submission and have perused the record of the case. 9. The short controversy in the present appeal is that if an assessee is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evious year, get his accounts of such previous year audited by an accountant before the specified date and furnish by that date the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed: Provided that this section shall not apply to the person, who derives income of the nature referred to in sec. 44B or sec. 44BBA, on and from the 1st day of April, 1985 or, as the case may be, the date on which the relevant section came into force, whichever is later: Provided further that in a case where such person is required by or under any other law to get his accounts audited, it shall be sufficient compliance with the provisions of this section if such person g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh a further report in form prescribed under this proviso (Form 3CA). 11. Admittedly, in the present case, these ingredients are not fulfilled and, therefore, operation of second proviso is ruled out. Now the second question arises as to whether in such a situation assessee is required to wait till completion of statutory audit under the relevant provision of the Act or it has to furnish the tax audit report as contemplated u/s 44AB. The answer to this is obvious and assessee cannot take the plea of not getting its account audited beyond the specified date and, therefore, is required to furnish the tax audit report as per the provisions of sec. 44AB. In such a situation the assessee is left with no other alternative but to furnish the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with the books of account maintained by the assessee, whereas form 3CA only requires the audit report along with audited financial statement to be annexed with the report. Thus, primarily the only difference in form 3CA and form 3CB is that in form 3CA the Auditors are not required to give separate audit report. But in form 3CB, since that deals with the case of an assessee whose accounts have not been audited, mandates a comprehensive audit report. Thus, when an assessee had furnished the tax audit report in form 3CB then it cannot be said that it has not complied with the provisions of sec. 44AB merely because the report is not in form 3CA which was not possible for assessee to furnish. It is well settled law that law does not require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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