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TMI Blog2019 (12) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... e applied here also. Accordingly, following the above said decision of Cochin bench of Tribunal, we set aside the order passed by Ld CIT(A) and direct the AO to delete the penalty levied u/s 271B of the Act for the year under consideration. - Decided in favour of assessee. - ITA No.718/Bang/2018 - - - Dated:- 13-12-2019 - Shri B.R Baskaran, Accountant Member And Smt. Beena Pillai, Judicial Member For the Appellant : Smt. Sumanlunkar C.A For the Respondent : Smt. Renuga Devi, J.C.I.T (DR) ORDER PER B.R BASKARAN, ACCOUNTANT MEMBER : The assessee has filed this appeal challenging the order dated 15-05-2017 passed by Ld CIT(A)-12, Bengaluru confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay in filing return of income as well as tax audit report. However, the assessee did not substantiate the above said explanation before Ld CIT(A) with any material. The Ld CIT(A) further noticed that the assessee had filed tax audit report within due dates in the earlier years. Accordingly the Ld CIT(A) held that the explanations furnished by the assessee do not constitute reasonable cause and accordingly confirmed the penalty. 5. We heard rival contentions and perused the record. There is no dispute with regard to the fact that the tax audit report was filed along with the return of income, i.e., it was available with the assessing officer before the completion of assessment. Though the Ld CIT(A) has given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.Y. 2012-13. The assessee got the books audited on 24/03/2014 and the same was furnished before the Assessing Officer on 27/03/2014. The assessment order was passed by the Assessing Officer on 26/03/2015. However, there was delay in furnishing the audit report in compliance with section 44AB of the Act. The contention of the Ld. AR is that the reason for delay in furnishing the audit report belatedly was due to the ill health of the partner Shri Naushad S. from 20.09.2012 to 19.10.2012 coupled with malfunctioning of the computer and loss of entire data due to hardware damage. For this purpose, the Ld. AR relied on the decision of the co-ordinate Bench of this Tribunal in the case of Star Agencies vs. ITO (23 CCH 646) wherein I.T.A. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made available to the Assessing Officer and no prejudice has been caused to the Revenue. Now the short question that arises is whether in this scenario, penalty u/s. 271B of the Act can be levied or not. In our considered opinion, the assessee had only committed technical venial breach which does not create any loss to the exchequer as the audit report was available to the Assessing Officer before the completion of the assessment proceedings. The Madras High Court in the case of CIT vs. A.N. Arunachalam (208 ITR 481) in the context of filing of audit report for claiming deduction u/s. 80J of the Act, observed that once audit report has been made available before the Ld. Assessing Officer before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed u/s 44AB of the Act. The delay has occurred due to delay in filing return of income. The assessee has stated that it was under bonafide belief that the audit report could also be filed before 31.3.2015. There is also no dispute with regard to the fact that the audit report was available with the assessing officer before he completed the assessment. Hence the view taken by the Cochin bench of Tribunal that the delay in furnishing audit report has resulted only in technical venial breach which does not cause any loss to exchequer could be applied here also. Accordingly, following the above said decision of Cochin bench of Tribunal, we set aside the order passed by Ld CIT(A) and direct the AO to delete the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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