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TMI Blog2022 (6) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... officer after passage 30 months after the completion of the assessment, we are of the opinion that the penalty proceedings are barred by limitation and consequently penalties levied under section 271B cannot be sustained and thus we delete the said penalty levied under section 271B - Assessee appeal allowed. - ITA No. 281/RPR/2017 - - - Dated:- 2-6-2022 - Shri Ravish Sood, Judicial Member And Shri Rathod Kamlesh Jayantbhai, Accountant Member For the Assessee : Shri Nikhilesh Begani For the Revenue : Shri G.N Singh ORDER PER RATHOD KAMLESH JAYANTBHAI, AM: This appeal is filed by the assessee aggrieved from the order of the Commissioner of Income Tax (Appeal), Bilaspur [ Here in after referred as Ld. CIT(A) ] for the assessment year 2009-10 dated 18.08.2017 which in turn arises from the order passed by the A.O under Section 271B of the Income-tax Act, 1961 (in short the Act ) dated 31.12.2014. 2. The hearing of the appeal was concluded through audio-visual medium on account of Government guidelines on account of prevalent situation of Covid-19 Pandemic, both the parties have placed their written as well as oral arguments during this online hearing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules and regulations of the society, the accounts of the assessee are required to be compulsorily audited by persons deputed by the Registrar of Co-operative Societies although as per Income Tax Act 1961 Tax audit report required to be obtained from chartered accountant before due date of filing return of Income i.e on or before 30.09.2009 but the Government auditors not under the control of assessee, completed the audit issued certificate on 09.02.2010 well after the due date, therefore, the assessee could play no role in getting the accounts audited in time. Thus, the auditor was carrying on audit work within the frame of statutory rule and for his act and conduct the assessee cannot be punished due to delay on the part of auditors. Hence, in view of the above narrated facts and circumstances that assessee society is running at huge loss Rs 53816379 as on 31.03.2009 neither the assessment nor such report reveals any loss of revenue it is most humbly submitted that the fault in not getting its books audited us 44AB of IT Act within time limit is not attributable to the assessee, also heavy losses are incurred by the society owing to such reasons, audit require u/s 44AB not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh only) under Section 271B of the Act. The assessee is directed to pay the penalty of Rs. 1,00,000/- in addition to the tax payable by him. 7. Aggrieved from the order of the ld. AO the assessee filed an appeal before the ld. CIT(A) who has sustained the levy of penalty on the following findings: Decision6 During appellate proceeding the ld. AR reiterated the arguments on the basis of written submission filed before the A.O. and the same was considered. It is a fact that assessee has incurred a loss and the ld. AO has accepted the loss as filed by the assessee. The return was filed on 29-03-2010 i.e. belated return u/s 139(4). The assessee as such is not liable to file return of income because its income does not exceed maximum non-chargeable limit. Section 139(3) of I.T. Act mandates the filing of return of income. The perusal of section 44AB of I.T. Act speaks about the liability of the assessee to get the account audited. In this case the turnover exceeds the limit laid down by section 44AB of IT. Act. Since the turnover is exceeding the threshold limit assessee was liable to get the accounts audited as required by the Act which he has not done. The arguments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty is levyable under section 271B of the Act when AO failed to record its satisfaction in the assessment order pertaining to it. There is no whisper in the assessment order regarding the levy of the penalty. When it so then we find no reason to interfere with the impugned order. The same is hereby sustained alongwith the reasons mentioned therein. 11. In addition to the above written submission the ld. AR of the assessee heavily relied upon the decision of the Tribunal in the case of Amit Sabharwal, Ghaziabad vs. ITO Ward-1(5), Ghaziabad in ITA No. 886/Del/2018 dated 14th May, 2019 is extracted as under:- 10. I have heard the rival arguments made by both the sides and perused the orders of the authorities below. I have also considered the various decisions cited before me. I find the Assessing Officer completed the original assessment u/s 143(3) on 29th December, 2011 determining the total income of the assessee at Rs.30,13,680/-. At that time, as appears from para 2 onwards, the Assessing Officer has mentioned in the assessment order that the gross receipt is at Rs.2,29,72,281/- whereas as per the assessee the gross receipts were Rs.2,08,31,714/-. However, the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 257 (CTK) of 1994 dated Feb 16, 1996 is extracted as under:- On a reading of the provisions of section 275(c) along with the notes on clauses, we are of opinion that the amended clause (c) is not different from the unamended clause (c) of section 275(1) of the Act and the Legislature only intended to reduce the period of limitation which was hitherto two years from the end of the financial year. Thus, to our mind, the same interpretation which was placed on the unamended clause (1) of section 275 applies to the provisions of amended w.e.f 1-4-1989. We may further observe that even accepting for a moment that there is no time limit prescribed under the Act for initiating penalty proceedings under section 271B/275 of the Act, as rightly submitted by the ld. Counsel for the assessee, by taking the spirit of the provisions of section 275 fixing the time limit for initiation of penalty proceedings under section 271(1)(a) and 271(1)(b), etc., in the case of the assessee, penalty proceedings have to be initiated by the Assessing Officer within a reasonable period of time and any proceeding initiated after an abnormal delay, is liable to be created as in-valid in law. Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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