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TMI Blog2016 (8) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... has failed to appreciate the basic fact that appellant had duly explained the reasons for delay in filing of tax audit report, which explanation and documentary evidences were arbitrarily brushed aside by the learned Commissioner of Income Tax (Appeals), and therefore, the penalty so sustained should be deleted as such. 1.3 That the learned Commissioner of Income Tax (Appeals) has further grossly erred in relying on the judgments totally inapplicable to the facts of the case of the appellant company and further, placing her judgment on wholly extraneous and irrelevant considerations." 3. Facts of the case in brief are that the assessee is a 100% subsidiary of BSI Standards Institutions UK (BSI Group) and was engaged in assessment, reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f [one hundred fifty thousand rupees], whichever is less]. [But the word one hundred fifty thousand rupees was substituted for one hundred thousand rupees by the Finance Act, 2010, w.e.f. 01.04.2011]. 5.2. In the instant case, the AO observed that appellant company has got its accounts audited u/s 44AB on 27.11.2009 whereas for the assessment year under consideration i.e. A.Y. 2009-10 the specified date, in IT. Act, 1961, by which the appellant company has to get its accounts audited was 30.09.2009. Accordingly, penalty u/s 271B of the I.T. Act, 1961 amounting to Rs. 1,00,000/- was levied by the AO. 5.3. Before initiating the penalty proceedings, the AO issued a show cause notice dated 30.03.2013 to the appellant to show cause as to why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the ITAT Mumbai Bench in the case of APL India Pvt. Ltd. Vs JCIT (OSD) reported at (2014) 41 Taxman 85 (copy of the said order was furnished which is placed on record). It was submitted that delay in getting the tax audit u/s 44AB of the Act was due to the reasons that the statutory audit got delayed and was not completed which was beyond the control of the assessee. The ld. Counsel for the assessee reiterated the reasons and circumstances as stated before the ld. CIT(A) which read as under: "(i) That Mr. Jagjit Dewan, Head of Finance, resigned from the company during the impugned financial year i.e. on 4.9.2008. (ii) That Mr. Arun, Asstt. Manager Finance also resigned from the company on 4.12.2008. (iii) That during the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany again engaged the services of Mr. Arun, ex-assistant manager finance, who was trained and conversant with ERP (SAP) on contract basis w.e.f. 20.10.2009. (ix) That due to the aforesaid reasons, the statutory audit got completed on 27.11.2009 and on the same date the statutory audit report and tax audit report was signed i.e. on 27.11.2009. (x) That Report u/s 92E on (Form 3CEB) was signed by the auditors on January 28, 2010 and immediately on obtaining the same, the company filed its return of income on the same day i.e. on January 28, 2010 (on line) and also filed copy of report u/s 92E with the department on January 28, 2010." 6. In his rival submissions the ld. DR supported the orders of the authorities below and reiterated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 273B, such imposition of penalty is dependent on the proof that there was no reasonable cause for the failure. * Unless it is proved that there was reasonable cause for the failure there is no escape from the imposition of penalty. Section 271B does not leave any discretion at the hands of the authority except as provided in section 273B. There cannot be any proposition conceived of to the extent that if there was a substantive compliance or if there was no absolute default then penalty cannot be imposed. But the statute has used the expression 'may' employed in section 271B which cannot be treated to be mandatory. It has left a discretion that the taxing authority in given facts and circumstances may not impose penalty i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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