- (1.) THE assessee is a wholesale dealer in vegetable oil, ghee, etc. His total turnover for the asst. yr. 1990-91 was Rs. 1,29,38,844 and, as such, he was required to get his account audited as per the provisions of S. 44AB of the IT Act. He filed the return of his income duly accompanied with an audit report, dt. 30th Sept., 1991, on 25th Nov., 1991, but it was beyond the due date, the due date being 31st Oct.,1990. The AO initiated the penalty proceedings for his default for getting the accounts audited beyond the specified date. The assessee also did not respond to the penalty notice and accordingly, summons under S. 131 of the IT Act were issued against him. The AO examined the concerned chartered accountant and came to the conclusion that the assessee had failed to get the accounts audited by the specified time. He, therefore, levied a penalty of Rs. 65,000 for the assessee's default under S. 271B of the IT Act. The penalty was confirmed on an appeal, but it was marginally reduced to Rs. 64,694. On a further appeal, the Tribunal observed that since the default committed by the assessee was purely a technical default and he had not acted in disregard of his statutory obligation and there was no proof of his fraudulent or contumacious conduct, and he justified before the Tribunal valid reasons as to why there was delay in submitting the return, the penalty levied under S. 271B was found not proper and, as such, the penalty was struck down by the Tribunal. The CIT initially made an application under S. 256(1) of the IT Act for making a reference before the Tribunal, but the Tribunal rejected the same holding inter alia, that no question of law was involved. In the present application also, the following questions are raised : "1. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in cancelling the penalty under S. 271B amounting to Rs. 64,694 ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal's finding that the assessee had a reasonable cause in getting his accounts audited beyond the specified date is not perverse ? 3. Whether, the Hon'ble Tribunal is right in cancelling the penalty under S. 271B observing that the default was only a technical default and, therefore, no penalty was imposable, ignoring the basic intention of the statute for making the provisions of S. 44AB mandatory ? 4. Whether for imposition of penalty under S. 271B of the IT Act the existence of fraudulent and/or contumacious conduct of the assessee is necessary ?"
(2.) WITH due application of mind, we find that all the questions are basically questions of fact and no abstruse question of law does appear in the facts of the present case. In view of this position of law, we reject the present application.;