M/S. THE CHOVVA CO-OPERATIVE RURAL BANK LTD,KANNUR vs. THE ITO WARD 1, KANNUR
What did the Tribunal hold?
The Tribunal found that while the assessee's explanation for the delay was not fully substantiated with specific dates, the overall delay was marginal. However, it noted that the requirement under Section 44AB includes furnishing the tax audit report in prescribed forms, independent of the return filing date.
What were the facts?
The assessee, a co-operative bank, delayed filing its tax audit report by 21 days due to a delay in receiving the audit report from the Co-operative Department. The Assessing Officer levied a penalty under Section 271B for this delay.
What were the issues?
Whether the delay in furnishing the tax audit report by a co-operative society, attributed to the delayed audit by the Co-operative Department, constitutes a reasonable cause for waiving the penalty under Section 271B. Whether compliance with Section 44AB requires obtaining and furnishing both the tax audit report and the report under the Co-operative Societies Act by the due date.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
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- Bank Ltd. v. ITO17 citing424 ITR 422 · 2020 · HC
Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Sanjay Arora, AM &Shri Manomohan Das, JM
O R D E R
Per Sanjay Arora, AM:
This is an Appeal by the Assessee agitating the confirmation of penalty under section 271B of the Income-tax Act, 1961 (‘the Act’ hereinafter) by the Commissioner of Income-tax (Appeals), Income Tax Department [CIT(A)] vide his order dated 27.01.2023, levied in the sum of Rs.1.50 lakh by the Assessing Officer (AO) vide his order dated 16.02.2022 for assessment year (AY) 2017-2018.
The assessee’s, a primary agricultural co-operative society (PACS) under the Kerala Co-operative Societies Act, 1969 (Kerala Act), case before us, which is the same as before the Revenue authorities, is that the 21-day delay in furnishing the tax audit report u/s.44AB of the Act had been caused on account of the delayed audit of it’s accounts and, thus, receipt of audit report there-under from the Co-operative Department. The audit report u/s.44AB, finalized on 18.11.2017,was accordingly furnished along with the return of income on 28.11.2017, i.e., as against the due date
(AY 2017-2018) The Chovva Co-operative Rural Bank Ltd. v. ITO u/s.139(1) of 07.11.2017. The same did not find favour with the Revenue authorities inasmuch as the said explanation was not substantiated.
We have heard the parties, and perused the material on record. There is, to begin with, no reference to any of these dates in the assessee’s explanation, which is otherwise the same – as it ought to be, as before the Revenue authorities.This assumes added significance in view of a clear finding by the Assessing Officer (AO) of the assessee’s case being unsubstantiated (para 3.1/pg. 3of the penalty order), not controverted at any stage. Two, even as the 10-day delay, i.e., from 18.11.2017 to 27.11.2017, is unexplained inasmuch as the audit report, since obtained, already delayed for furnishing, could have been filed by the assessee on 18.11.2017 itself, or thereabouts, we consider the 21-day delay as, under the circumstances, satisfying the test of a reasonable cause u/s.273B, saving penalty. So, however, the assessee’s explanation is sans any reference to the date of obtaining the audit report from the co-operative department, which only would make his explanation complete and, in fact, substantiate it. Sri.Raj, the learned counsel for the assessee, on being inquired in the matter, stated of the same being not readily available. Even ignoring the same, inasmuch as the over-all delay is marginal, with the delayed receipt of audit reports from the co-operative department we observe to be a regular feature, there is nothing on record to show that the said audit report was also filed along with on 28.11.2017 and, in fact, even no contention to that effect. This is as, where not, it cannot be said that the assessee had complied with the prescription of sec.44AB of the Act with a 21-day delay. The Hon’ble jurisdictional High Court in Peroorkkada Service Cooperative Bank Ltd. vs. ITO [2020] 424 ITR 422 (Ker)did not accept the plea of submission of audit report under the Kerala Act as in sufficient compliance of sec. 44AB, as vide third proviso thereto, it also obliges furnishing the tax audit report in the prescribed forms (Forms 3CA and 3CD). That is, both the audit reports would be required to be obtained and furnished by the due date of filing the return u/s. 139(1) in satisfaction of the mandate of s. 44AB. The requirement is independent of the 2
(AY 2017-2018) The Chovva Co-operative Rural Bank Ltd. v. ITO filing of the return u/s. 139(1). This would also meet the assessee’s reliance on Anilkumar L. v. ITO (in dated 30.04.2019), as indeed others by the Tribunal regarding breach of sec.44AB as being technical and venial; a plea specifically rejected by the Hon’ble Court.
The matter, accordingly, setting aside the impugned order, is restored to the file of the AO. Where the assessee has indeed filed the audit report under the Kerala Act along with return of income on 28.11.2017, no penalty is leviable. On the other hand, where it has not been so filed, the penalty shall hold. We decide accordingly.
More judgments on Section 271B
- Devayatbhai Kalotara, Rajkot vs The Income Tax Officer, Ward-2, RajkotITA 679/RJT/2026[2020-21]Status: Disposed9 Oct 2026AY 2020-21
- Waghire College Saswad, Pune vs ITO, Ward 14(5), PuneITA 2867/PUN/2026[2019-20]Status: Disposed9 Oct 2026AY 2019-20
- Waghire College Saswad, Pune vs ITO, Ward 14(5), PuneITA 2866/PUN/2026[2019-20]Status: Disposed9 Oct 2026AY 2019-20
- Waghire College Saswad, Pune vs ITO, Ward 14(5), PuneITA 2865/PUN/2026[2019-20]Status: Disposed9 Oct 2026AY 2019-20
- Waghire College Saswad, Pune vs ITO, Ward 14(5), PuneITA 2864/PUN/2026[2018-19]Status: Disposed9 Oct 2026AY 2018-19
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