- (1.) FOLLOWING question has been referred for opinion of this Court by the Tribunal, Amritsar Bench, Amritsar, arising out of "Whether on the facts and in the circumstances of the case, the Tribunal was right in cancelling the penalty levied under s. 271B of the IT Act, 1961 -
(2.) THE assessee is a registered firm deriving income from manufacturing and sale of cycle tyre tubes and auto tyres. The assessee declared gross turnover of Rs. 53,46,130. The turnover being in excess of Rs. 40 lakhs, accounts were required to be audited under s. 44AB of the IT Act, 1961 (for short, 'the Act') and audit report was required to be submitted before the specified date mentioned in Expln. 2 to the said provision. The assessee got the accounts audited before the specified date but did not file the return within the time specified under s. 139(1) of the Act. The return was filed on 31st
(3.) THE CIT(A) allowed the assessee's appeal and deleted the penalty. It was observed that though the assessee may have committed default of late filing of return, there was no non -compliance of s. 271B of the Act. The Tribunal affirmed this view. We find that the issue stands covered by judgment of this Court in ITO vs. Kaysons India (2000) 163 CTR (P&H) 75 : (2000) 246 ITR 489 (P&H). After considering the relevant provisions, this Court observed at p. 492 : "It is, therefore, evident that the default or failure to file the return along with the audit report on or before the specified date is not hit by the provisions of s. 271B. It is not the case of the Revenue that the assessee has failed to get the accounts audited or has failed to obtain the report of such audit in terms of s. 44AB before the specified date. It is also evident that no return had been filed either under sub -s. (1) of s. 139 or in response to any notice under cl. (i) of sub -s. (1) of s. 142 and as such there could possibly be no default of not furnishing the audit report along with such a non - duly accompanied by the audit report obtained by the assessee in accordance with the provisions of s. 44AB. Thus, according to us, the default for which penalty had been levied was not covered by the provisions of s. 271B and the CIT (A) and the Tribunal were justified in holding that no penalty was leviable." This Court also noticed the amendment in s. 44AB and s. 271B of the Act, vide Finance Act, 1995 laying down requirement of submitting audit report before the specified date. ;