RAJESH AGARWAL,KOLKATA vs. ITO, WARD 36(1), KOLKATA, KOLKATA

Rajesh Agarwal Vs. ITO Wd-36(1), Kol. Page 2 2. It emerges at the outset that instant appeal suffers from delay of 92 days in filing. Learned counsel representing assessee invites our attention to assessee’s condonation affidavit dated 21.03.2017 attributing the delay in question to various procedural aspects. The Revenue fails to dispute the said solemn averments. We therefore observe that the impugned delay of 92 days in filing of the instant appeal is neither intentional nor deliberate. The same stands condoned.

We now advert to the merits of the correctness of the impugned penalty imposed by both the lower authorities u/s 271B of the Act citing assessee’s failure to get its account audited. Both learned Representatives indicate that a co-ordinate bench of this tribunal in assessee’s case to 842/Kol/2017 for preceding assessment year decided on 13.04.2018 has restored the very issue back to the Assessing Officer to verify its contention with the following directions:- “… .. We, therefore, restore this matter to the file of the AO with the direction to verify the claim of the assessee of having not maintained any regular books of account for all the four years under consideration form the relevant record and decide the issue in the light of the decision of hon'ble Gauhati High Court in the case of Suraj Mal Parasuram Todi (supra) and Allahabad High Court in the case of Bisauli Tractors (supra). The AO is also directed to verify another contention raised by the learned counsel for the assessee that the penalties of Rs.1,47,702/- and Rs.1,35,820/- imposed for AY 2008-09 and 2009-10 respectively are more than the maximum penalty of rs.1,00,000/- leviable for the said years and allow appropriate relief to the assessee accordingly.”