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TMI Blog2018 (5) TMI 1907X X X X Extracts X X X X X X X X Extracts X X X X ..... k to the file of the AO for examination of the reason/s for the delayed filing of his returns by the assessee. We, however, in the facts and circumstances of the case, as well as considering the quantum of the penalty involved, do not consider it proper to restore the matter back for the same. Giving the assessee the benefit of doubt, so that he has furnished a reasonable explanation bona fide for the delayed audit of his accounts, we direct the deletion of the impugned penalty. Needless to add, this order, rendered in the peculiar factual matrix of the case, shall not constitute a precedent. - Decided in favour of assessee. - I.T.A. No. 454/(Asr)/2017 Assessment Year: 2014-15 - - - Dated:- 29-5-2018 - Sh. Sanjay Arora, Accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sum equal to one-half per cent of the total sales, turnover or gross receipts, as the case may be, in business, or of the gross receipts in profession, in such previous year or years or a sum of one hundred thousand rupees, whichever is less. The assessee, in reply to the show-cause notice, submitted that he was not required to get his accounts audited up to the year relevant to AY 2012-13. He was accordingly not advised in the matter by his Advocate, Shri Sanjeev Arora. It is this non-advice by his counsel that led to a failure to get his accounts audited, constituting a reasonable cause u/s. 273B, saving penalty. The same was, however, regarded as an afterthought as the assessee was a regular assessee; in fact, a reputed bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed an affidavit dated 09.03.2016 by Shri Sanjeev Kumar, Advocate (at PB page 8). The same states that as the assessee s, whose returns he has been filing since AY 2008-09, turnover up to (the year relevant to) AY 2012-13 did not exceed the limit prescribed under section 44AB, he could not advise the assessee to get his accounts audited for AY 2014-15. On enquiry about the intervening year, i.e., the previous year relevant to AY 2013-14, the counsel, Shri P.N. Arora, would clarify that the returns for both the years, i.e., AYs. 2013-14 and 2014-15, were filed on 31.03.2015, and audit reports for both the years (dated 31.03.2015), uploaded on the same day, placing a copy of the said returns on record. This is clearly surprising. This is as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e., before the Revenue. Not only the assessee did not do so, he also did not approach his counsel for filing the return for the current year (AY 2014-15) in time, being due for unaudited accounts, by 31.07.2014. This is as, again, doing so would have, likewise informed him that the last date for filing the return (for AY 2014-15) is 30.09.2014, by which he is also to furnish the audit report under section 44AB to the Department. And which he does only on 31.03.2015. It is thus patent that the error lies not in the advice of the counsel, who in fact, guided him on being approached, rightly, but with the assessee, inasmuch as he did not approach him in time for filing the return, firstly, for AY 2013-14, and then again for AY 2014-15. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravention of section 44AB, with that under reference being the second such default in succession. No reasonable cause, under the circumstances, stands shown, much less proved, so as to eschew the impugned penalty. 3.3 Continuing further, even as no case law was referred to during hearing, we find two decisions by the Hon'ble jurisdictional High Court in the assessee s compilation, which we are therefore obliged to take note of. In CIT v. Deepak Kumar [2010] 38 DTR 118 (P H), the Hon'ble Court upheld the deletion of penalty under section 271(1)(c). All the facts along with the dates of purchase and sale of shares stood disclosed. That the assessee had acted bona fide on the basis of the advice of his counsel, who furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y he did not proceed to file his returns for the two successive years, the second of which is before us, in time, remains completely unanswered. The delay in approaching his counsel, post for AY 2012-13, the return for which fell due in July, 2012, is in fact not for months, but for years, as we have clarified that approaching his counsel in time for either year (AY 2013-14 or 2014-15) would prevent the default. The explanation advanced, supported by an affidavit, when examined in the context of the facts of the case, does not exhibit the counsels mistake at all which, in substance, is the assessee s explanation. Rather, the assessee s conduct exhibits his awareness of his legal obligations and the concomitant implications. The cited cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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