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TMI Blog2019 (1) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal has been filed raising the following substantial questions of law : "i. Whether the interpretation and application of Section 271B read with Section 273B was correctly made by the Income Tax Appellate Tribunal ? ii. Whether the Tribunal had rightly considered and applied the provisions of Section 273B providing for no penalty to be levied if reasonable cause is explained by the assessee ? And iii. Whether the Tribunal was correct in law in confirming the penalty levied when the audit report was filed along with the return and hence constitutes only a venial breach?" 3. We have heard Mr.T.Vasudevan, learned counsel for the appellant and Mrs.R. Hemalatha, learned Senior Standing Counsel appearing for the respondent - Revenue. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before the Tribunal by contending that the appellant was habitual in filing the tax audit reports belatedly and referred to the proceedings for the assessment year 2011-12. 9. The learned counsel for the appellant would submit that during the said assessment year namely 2011-12, the assessee's father and mother passed away, as a result of which, the audit report could not be filed and ultimately, the explanation given by the assessee was accepted and the Tribunal deleted the penalty by order dated 23.11.2016 in ITA.No.1222/Mds/ 2016. 10. Admittedly, the reasons assigned by the assessee have not been found to be false nor with any mala fide intention, the reasons were assigned. Therefore, this Court is of the view that the expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. 12. Though the above decision arises under the Orissa Sales Tax Act, 1947, the ratio decidendi of the said decision could very well be applied to the assessee's case. We find that the non filing of the tax audit report before 30.9.2012 is a technical breach and admittedly, the assessee filed the audit report along with the return of income on 31.3.2013 and that the assessment was framed by the Assessing Officer only on 29.3.2015, on which date, the audit report was very much on the file of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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