- (1.) THE Tribunal, Allahabad has referred the following two questions under s. 256(1) of the IT Act (hereinafter referred to as the Act) for opinion to this Court : "(1) Whether in view of the facts and circumstances of the case, the Tribunal was right in cancelling the penalty order the plea that the assessee's accountant was indisposed ? (2) Whether on the facts and in the circumstances of the case the assessee was under obligation to file his audited account within the time allowed under s. 139(1) of the Act -
(2.) THE matter relates to the asst. yr. 1989 -90.
(3.) THE present reference arises out of penalty proceeding under s. 271B of the Act. The respondent -assessee filed return 139 of the Act. In reply to the show -cause notice it was stated that the respondent -assessee was obliged to get its the Act, which was set aside in appeal by the CIT(A). The said order has been confirmed by the Tribunal. Heard learned standing counsel for the Department. We find that the controversy stands concluded by a Division Bench of this Court in the cases of CIT vs. Gramin Sadhan (2000) 164 CTR (All) 226 : (2000) 245 ITR 563 (All) and CIT vs. Jai Durga Construction Co. (2000) 164 CTR (All) 512 : (2000) 245 ITR 857 (All). It has been held that under s. 44AB, as it stood during the assessment year under consideration, the assessee was required to get its account audited by the accountant before the specified date. There was no obligation to furnish audit report before the assessing authority before the specified date. This obligation has been created by substituting the words "furnished by" for the assessee to whom under s. 44AB applied was merely to get the account audited and get the audit report before the specified date. In the present case, there is no dispute that the assessee complied with these requirements. Therefore we are of the opinion that in such circumstances no penalty under s. 271B can be levied on the respondent.;