R.K.AGRAWAL, J. - (1.) THE Tribunal, Allahabad has referred the following question of law under s. 256(1) of the IT Act, 1961 (hereinafter referred to as "the Act") for opinion to this Court : "Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was justified in cancelling the penalty of Rs. 56,798 levied under s. 271B of the IT Act, 1961, when the assessee had clearly failed to comply with the provisions of s. 44AB r/w s. 271B of the IT Act, 1961 - The reference relates to the asst. yr. 1990 -91.
(2.) BRIEFLY stated, the facts giving rise to the present reference are as follow : 1990 along with their audit report obtained under s. 44AB of the Act. This audit report was obtained under s. 44AB by and the penalty of Rs. 56,798 was imposed, which was deleted during the first appeal. In the Department's appeal, the Tribunal confirmed the deletion of the penalty mainly on the ground that the audit report having been obtained by the assessee timely, no provision existed whereby the assessee in respect of the relevant assessment year could have filed the audit report independent of the return and realising this lacuna in law. Sec. 44AB was amended by the Finance Act, report should also be furnished by that date irrespective of the fact as to whether the return of income was filed by the assessee by the due date or not.
(3.) WE have heard Sri A.N. Mahajan, learned Standing Counsel for the Revenue. We find that this Court in the case of CIT vs. Jai Durga Construction Co. (2000) 164 CTR (All) 512 : (2000) 245 ITR under s. 271B for not filing the audited report along with the return.;