- (1.) THESE two appeals are directed against the order dated November 24, 2000, passed by the Income-tax Appellate Tribunal, Jaipur. THESE appeals relate to the assessment years 1986-87 and 1988-89. The common issue involved in these appeals is with regard to penalty imposed under Section 271B of the Income-tax Act, 1961, and therefore, the appeals are being decided by this common order.
(2.) THE appellant, Rajasthan Co-operative Dairy Federation Ltd., is a co-operative society governed by the provisions of the Rajasthan Co-operative Societies Act, 1965. As per the requirement of Section 44AB of the Income-tax Act, 1961, the assessee should get its accounts of the previous year audited by an auditor before the specified date. For the assessment year 1986-87, the specified date was June 30, 1986, and for the assessment year 1988-89, the specified date was June 30, 1988. Admittedly, the assessee had not got its accounts audited before the aforesaid specified dates, and therefore, the proceedings for imposing penalty under Section 271B were initiated by the Assessing Officer and he levied the penalty of Rs. 1 lakh for each year, i.e., 1986-87 and 1988-89. In appeal before the Commissioner of Income-tax (Appeals), the assessee submitted that the power to appoint the auditor is with the Registrar, Cooperative Societies, under Section 68 of the Co-operative Societies Act, 1965, and unless the auditor is appointed by the Registrar, Co-operative Societies, it was not possible for the assessee to get its accounts audited and that had not been done by the Registrar, Co-operative Societies, in spite of repeated requests made by the assessee. The assessee could not get its accounts audited before the specified dates and the explanation submitted by the assessee was accepted being a reasonable cause' for delay in filing the audit report and the penalty imposed by the Assessing Officer had been cancelled by the Commissioner of Income-tax (Appeals). In both these appeals, the Income-tax Appellate Tribunal, Jaipur, was of the view that since the auditor had not been appointed before the specified dates, as such, the accounts could not be got audited before the specified dates, even then the penalty levied by the Assessing Officer is justified. In appeal before us, Mr. Jain, learned counsel for the appellant-assessee, submits that since the appointment of the auditor is in the hands of the Registrar, Co-operative Societies, under Section 68 of the Co-operative Societies Act, 1965, the assessee could not get its accounts audited without statutory audit done by the auditor appointed by the Registrar, Co-operative Societies. He drew our attention to page No. 42 of the paper book which relates to the order dated May 8, 1994, passed by the Registrar, Co-operative Societies, Jaipur, wherein it has been directed that no certificate with regard to tax audit shall be issued unless the accounts are got audited by the auditor appointed by the Registrar, Co-operative Societies.
(3.) MR. Jain also brought to our notice that in spite of the requests made by the assessee to the Registrar, Co-operative Societies, Jaipur, for appointment of the auditor before the specified dates the same had not been done by the Registrar and in the absence of appointment of the auditor, it was beyond the control of the assessee to get its accounts audited and the delay had been caused due to late appointment of the auditor. Therefore, penalty should not be levied upon the assessee under Section 271B of the Income-tax Act, 1961. He further submits that the proviso to Section 44AB of the Income-tax Act, 1961, provides that if a statutory audit is got completed under any other relevant statute by the society, it shall be the sufficient compliance with the provisions of Section 44AB of the Act of 1961. Mr. Singhi, learned counsel for the Revenue, submits that it is true, that the proviso to Section 44AB of the Income-tax Act, 1961, provides that if the accounts are got audited under any other law by the society that is sufficient compliance with the provisions of Section 44AB of the Income-tax Act, 1961, but, the audit should be completed before the specified date. In this case, the audit had not been completed before the specified date, therefore, this provision does not help the assessee in any way. ;