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TMI Blog2022 (9) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Commissioner of Income Tax (Appeals) ('Ld. CIT(A)') is bad in law and against the facts and circumstances of the case. 2. The Ld. Assessing Officer erred in levying penalty u/s.27IB of the Act for belated filing of audit report in terms of Section 44 AB of the Act without assigning proper reasons and justifications. 3. Section 273 provides that no penalty shall be imposable on the person for any failure referred to in the relevant penalty section prescribed in Section 273B, if the assessee proves that there was a reasonable cause for the said failure. In the present case, the partner Madhivanan is managing the day to day affairs of the firm. But, as the said partner was suffering from Asthma, BP and also diabetics, he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 27IB by the Ld. Assessing Officer and confirmed by the Ld. CIT(A) in its order, may kindly be deleted and justice be rendered. 8. The Appellant craves leave to amend, alter or delete any of the above grounds of appeal. 3. The brief facts of the case are that the assessee's firm filed its return of income for the AY 2015-16 on 28.03.2016 admitting total income of Rs.56,69,650/-. The case was selected for scrutiny and assessment has been completed u/s.143(3) of the Act, on 22.11.2017 and accepted the income declared in the return of income. Subsequently, the AO has initiated penalty proceedings u/s.271B of the Act, for delayed filing of Tax Audit Report in Form 3CB as required u/s.44AB of the Act, and after considering the relevant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record and gone through orders of the authorities below. It is an admitted fact that although the assessee has filed Tax Audit Report in Form 3CB as required u/s.44AB of the Act, beyond due date specified u/s.139(1) of the Act, but such Tax Audit Report was made available to the AO before completion of assessment proceedings u/s.143(3) of the Act, on 22.11.2017. It is evident from the fact that the assessee has obtained Tax Audit Report from an Accountant on 28.03.2016 and furnished before the AO during the course of assessment proceedings. Therefore, we are of the considered view that when the Tax Audit Report was made available to the AO before completion of assessment proceedings, then for venial technical breach without any mala fide i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach without any mala fide intention on the part of the assessee. Because, completion of audit of books of accounts of the society is under the control of Dept. of Cooperative Audit and thus, unless the Dept. of Cooperative Audit completes audit, the assessee cannot file return of income along with tax audit report. Therefore, we are of the considered view that reasons given by the assessee for not filing tax audit report prescribed u/s.44AB of the Act, is neither intention nor any mala fide intention, but it is venial technical breach and for this reason, penalty u/s.271B of the Act, cannot be levied. This principle is supported by the decision of the Hon'ble jurisdictional High Court in the case of P.Senthil Kumar v. PCIT reported in 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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