SRI.RAMAKRISHNA PILLAI M,TRIVANDRUM vs. ITO, WD-1(2),, TRIVANDRUM

There is a delay of 19 days in filing the appeals before the Tribunal. The assessee has filed petition for condonation of delay. We have perused the reasons stated for filing the appeals belatedly. We find that there is sufficient cause for the delayed filing of the appeals and no latches can be attributed to the assessee. Hence, we condone the delay in filing this appeal and proceed to dispose off the same on merits.

The assessee is an individual engaged in the business of running a petrol pump and also running of bus service. For the assessment year 2010-2011, return of income was filed on 30.03.2012 declaring a sum of Rs.4,94,640. The Assessing Officer, on verification of records, found that the audit report u/s 44AB of the I.T.Act submitted by the assessee did not cover business of running bus service. According to the Assessing Officer, the total turnover on running of bus service exceeded the auditable limit of Rs.40 lakh, and hence, non- submission of audit report in respect of bus service was liable for penalty u/s 271B of the I.T.Act. The assessee submitted that he had not maintained any books of account and receipts and payments of bus service were prepared by the assessee from daily trip sheet and expenditure vouchers. The A.O. rejected the contentions of the assessee and imposed penalty of Rs.37,996.

Aggrieved by the order imposing penalty for assessment year 2010-2011, the assessee preferred appeal to the first

Aggrieved by the order of the CIT(A), the assessee has preferred this appeal to the Tribunal. The learned Counsel for the assessee reiterated the submissions made before the

We have heard the rival submissions and perused the material on record. Admittedly in this case the assessee has not maintained any books of account in regard to the running of bus service. The Hon’ble Gauhati High Court in the case of Surajmal Parsuram Todi v. CIT (supra) and Hon’ble Allahabad High Court in the case of CIT v. Bisauli Tractors (supra), had held that when books of account are not maintained, there cannot be imposition of penalty u/s 271B of the I.T.Act. No contrary judgment of the Hon’ble jurisdictional High Court has been brought to our notice, hence, by following the judgments of the Hon’ble Allahabad High Court in the case of Bisauli Tractors (supra) and Hon’ble Gauhati High Court in the case of Surajmal Parsuram Todi v. CIT (supra), we delete the penalty imposed u/s 271B of the I.T.Act in respect of assessment year 2010-2011. It is ordered accordingly.

In the result, the appeal for assessment year 2010-2011 is allowed.

There is admittedly a delay of 28 months in filing the audit report. The assessing authority held that there was no

Before the first appellate authority, the assessee had contended in the grounds of appeal that the audit was completed well before the due date of filing of the return and the report in Form No.3CA and 3CD was also ready on that date. However, the assessee was admitted in hospital during the relevant period, and therefore, the audit report could not be submitted on time. The CIT(A), however, rejected the contentions of the assessee and dismissed the appeal. The relevant finding of the CIT(A) reads as follow:- 6. I considered the above explanation but unable to entertain the same. In the absence of documentary evidences brought out by the assessee at any point of given time. Had the audit really been completed in time, documentary evidences for the audit completed could have been filed to the Assessing Officer immediately then and thereby, further time could have been sought to file the return along with audit report at a later date. This was not done by for the reason best known to the assessee. It is also not known as to why the Assessing Officer was not informed well in tome about the audit which had allegedly been completed already. This apart, credible evidences for the assessee who got hospitalized could also have been made available to the assessing authority when the opportunities were given on 27.01.2016, 02.06.2016 and 07.07.2016. Without answering the core question of why the Assessing Officer was not informed as soon as the audit was completed for the delay that would be caused for further details to be secured from the assessee who was allegedly hospitalized, the assessee cannot have justifiable reason for the delay caused. In the absence of explaining the reason for the delay caused, the penalty levied has to be confirmed and in this regard, I rely on the decision of the Hon'ble High Court of Kerala in the case of K.Ravindranathan Nair vs DClT reported in 319 ITR 108. The penalty levied thus, is confirmed. In the result, the appeal filed for this year also stands dismissed.”

We have heard the rival submissions and perused the material on record. Admittedly, there was a delay of 28 months in filing the audit report. Even before the Tribunal the assessee has stated in the grounds of appeal that he was not well during the relevant period and could not furnish the personal details to the Auditor for the submission of the audit report. Howeer, no material / evidence has been brought on record to prove that the assessee was not well during the relevant period and there was reasonable cause as mandate u/s 273B of the I.T.Act, for submission of audit report belatedly. Hence, we hold that the penalty imposed u/s 271B of the I.T.Act in respect of assessment year 2013-2014 has been imposed correctly and we uphold the same. It is ordered accordingly.

In the result, the appeal filed for assessment year 2010- 2011 is allowed and for assessment year 2013-2014 is dismissed.