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TMI Blog2023 (3) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... d stands deleted. As decided in P.Senthil Kumar v. PCIT [ 2019 (1) TMI 222 - MADRAS HIGH COURT ] for venial technical breach without any mala fide intention, penalty cannot be levied. Decided in favour of assessee. - I.T.A. No.603/Chny/2022 - - - Dated:- 15-2-2023 - Shri V. Durga Rao, Judicial Member And Shri G. Manjunatha, Accountant Member For the Appellant : Shri S. Sridhar, Advocate (Erode) For the Respondent : Shri AR V Sreenivasan, Addl. CIT ORDER PER V. DURGA RAO, JUDICIAL MEMBER: This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 13.06.2022 relevant to the assessment year 2011-12 passed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audited and liable to file the tax audit report as required under section 44AB of the Act before the due date. Since the assessee has not filed the tax audit report within due date and in view of the provisions of section 271B of the Act, the Assessing Officer levied minimum penalty of ₹.83,680/-. On appeal, the ld. CIT(A) (NFAC) confirmed the penalty levied under section 271B of the Act. 4. On being aggrieved, the assessee is in appeal before the Tribunal. The ld. Counsel for the assessee has submitted that the auditing of accounts of the earlier two assessment years constituted delay in getting the accounts audited in the impugned assessment year. It was further submission that the audit report under section 44AB of the Act were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have heard both the parties, perused the materials available on 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 proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-filing of audit report within the due date is a venial technical 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 jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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