9911796707
TMI Blog2023 (4) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and prayed for deleting the penalty levied under section 271B of the Act. Similar issue on an identical fact was subject matter in appeal before this Tribunal in the case of Balaji Logistics [ 2022 (9) TMI 1432 - ITAT CHENNAI] reasons given by the assessee for not filing tax audit report within due date comes under reasonable cause as provided u/s.271B of the Act, and thus, the AO is erred in levying penalty u/s.271B - Decided in favour of assessee. - Shri V. Durga Rao, Judicial Member And Shri Manoj Kumar Aggarwal, Accountant Member For the Appellant : Shri T. Vasudevan, Advocate For the Respondent : Mrs. Jothi Lakshmi Nayak for Shri AR V Sreenivasan, Addl. CIT ORDER PER V. DURGA RAO, JUDICIAL MEMBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (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 audit report under section 44AB of the Act were furnished along with the return of income on 30.12.2017 and the assessment under section 143(3) of the Act has been completed on the basis of the audit report and return of income filed by the assessee. It was further submission that the delay in filing the same constituted a venial breach without any mala fide intention and prayed for deleting the penalty levied under section 271B of the Act. 5. On the other hand, the ld. DR has submitted that the assessee has not given any proper explanation ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 intention, penalty cannot be levied u/s.271B of the Act. Further, a similar issue has been considered by the co-ordinate B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 416 ITR 336, where an identical issue had been considered by the Court and held that for venial technical breach withou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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