RAKESH KUMAR GARG, J. - (1.) THIS order shall dispose of IT Appeal Nos. 454 and 455 of 2007. The Revenue has filed these appeals under s. 260A of and 95/Asr/2002 in case of the assessee for the asst. yr. 1996 -1997 by raising the following substantial question of law : "(i) Whether on the facts and in the circumstances of the case and in law, the order of the Tribunal deleting the penalty of Rs. 1,00,000 imposed under s. 271B of the Act for assessee's failure to get its books of account audited before the specified date and to furnish the same by the specified date as per s. 44AB of the Act was not perverse -
(2.) THE brief facts of the case are that the respondent/assessee is a firm running a petrol pump. No return of income was declaring loss of Rs. 371. The returned income was accepted under s. 143(1) of the IT Act. Since the total turnover exceeded Rs. 40 lacs, it was obligatory on the part of the assessee to get its books of account audited before the specified date and to furnish the same by the specified date in view of the provisions of s. 44AB of the IT Act. A show -
(3.) IN response to this notice, the assessee filed a written reply. In the reply, it was submitted by the assessee that the assessee firm though had not submitted its IT return due to some unavoidable circumstances but had got its accounts audited from the chartered accountant well in advance and also sent the audited report Under Postal Certificate (UPC) to assessee under s. 271B of the IT Act. Feeling aggrieved against this order, the assessee filed an appeal before the CIT(A), Jalandhar. The said appeal was and held that the levy of penalty under s. 271B was uncalled for and thus the penalty was deleted. The relevant part of the judgment of the Tribunal is reproduced as under : "We have heard the parties and have perused the material on record. The issue under consideration is as to whether the penalty under s. 271B has rightly been levied on the assessee. The case of the assessee is that certified copy of the TAR had been despatched well in time to the Department. The assessee has produced on record copies of the UPCs. The version of the assessee has been disbelieved, since the person sending the UPCs could be produced by the assessee, nor his name and address was furnished. The inability of the assessee in this regard was due to the fact that the said person was a part -time accountant, who had later on left the job with the assessee. The authenticity of the UPCs had not been doubted. It is also not the case of the Department that the UPCs were of a date beyond the specified date. In Kalyani Selection (supra), it has been held that where a valid return was despatched within the prescribed time under certificate of posting and was correctly addressed, a presumption of the return having been filed within time would arise, and that in such a case, levy of penalty was invalid. In the present case too, the Department has not been able to repel the UPCs produced on record by the assessee, showing that the TAR had been duly despatched within time to the Department. Therefore, levy of penalty is uncalled for.";