M/S.JOHNS BIWHEELERS, ALAPPUZHA vs. THE ACIT, ALAPPUZHA

Per CHANDRA POOJARI, AM:

This appeal filed by the assessee is directed against the order of the

CIT(A), Kottayam dated 06/08/2018 and pertains to assessment year 2013-14.

the Act.

assessee for the relevant assessment year was Rs.74,59,70,875/- and therefore, was liable to get its accounts audited as per the provisions of section 44AB of the

Act on or before the due date of filing of return of income, i.e. 30/09/2013.

However, the assessee got its accounts audited only on 28/03/2014. Therefore,

there was delay in getting the accounts audited and penalty u/s. 271B was levied

for failure to comply with the provisions of section 44AB of the Act subject to

provisions of section 273B of the Act, i.e. reasonable cause for the delay. Hence,

the Assessing Officer levied penalty of Rs.1,50,000/- u/s. 271B of the Act.

due to virus infection in the computer system, the data got erased and no back

up date was maintained. The Ld. AR relied on following decisions wherein it

was held that filing of report is only directory and not mandatory:

a) CIT vs. Malayalam Plantations (103 ITR 835) b) ACIT vs. Amar Chand Raj (89 ITD 96) c) Prem Prakash Senapati vs. ITO (ITAT, Cuttack in ITA 459 & 185/CTK/2017).

It was also submitted that there was a reasonable cause for the delay within the

meaning of s.273B of the Act.

the assessee was required to get his books of account audited and filed along

with the return of income u/s. 44AB within the due date of 30/09/2013 for the

assessment year 2013-14. However, the audit report was furnished only on

28/03/2014. The contention of the Ld. AR was that the delay in filing the return

of income was due to damage to computer system due to virus infection which is

a reasonable cause as prescribed u/s. 273B of the I.T. Act. The Ld. AR relied on

the following judgments in support of his contentions:

i) CIT vs. Malayalam Plantations Ltd. (1976) (103 ITR 835) (Ker.) ii) ACIT vs. Amar Chand Raj Kumar (2004) (89 ITD 96)(ITAT, Chandigarh) iii) Prem Prakash Senapati vs. ITO (ITA No.459&185/CTK/2017 dated 17/04/2018) )(ITAT, Cuttack).

7.1 From the material available on record, we are of the view that the

assessee got his books of accounts audited on 28/03/2014 which was made

available to the Assessing Officer and no prejudice has been caused to the

Revenue. Now the short question that arises is whether in this scenario, penalty

u/s. 271B of the Act can be levied or not. In our considered opinion, the

assessee had only committed technical venial breach which does not create any

loss to the exchequer as the audit report was available to the Assessing Officer

before the completion of the assessment proceedings. The Madras High Court in

the case of CIT vs. A.N. Arunachalam (208 ITR 481) in the context of filing of

audit report for claiming deduction u/s. 80J of the Act, observed that once audit report has been made available before the Ld. Assessing Officer before the

completion of assessment proceedings, the assessee should be granted

deduction u/s. 80J of the Act. We observe that this judgment was rendered in

the context of adjudication of quantum of deduction claimed by the assessee.

Hence, the said analogy can very well be drawn and used in the penalty

proceedings like that of the assessee. To sum up, we hold that the assessee had

committed only technical venial breach for which he cannot be penalized. In

view of the above, we are inclined to delete the penalty made by the assessee

u/s. 271B of the Act.

sd/- sd/- (GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Place: Kochi Dated: 5th February, 2019 GJ Copy to: 1. M/s. Johns Biwheelers, Thirumala Ward, Thathampally P.O., Alappuzha. 2. The Assistant Commissioner of Income-tax, Circle-1, Alappuzha. 3. The Commissioner of Income-tax(Appeals), Kottayam. 4. The Pr. Commissioner of Income-tax, Kottayam. 5. D.R., I.T.A.T., Cochin Bench, Cochin. 6. Guard File. By Order

(ASSISTANT REGISTRAR) I.T.A.T., Cochin