High Court Of Allahabad
Subhash Kirana Stores vs. CIT
Asst. Year 1990-91
Sudhir Narain & Bhagwan Din, JJ.
IT Appln. No. 142 of 1998
30th January, 2001
Satish Mandhyan, for the Applicant : Prakash Krishna, for the Respondent
BY THE COURT :
This is an application for making reference under s. 256(2) of the IT Act, 1961, on the following question of law :
“Whether, on the facts and in the circumstances of the case, any an penalty under s. 271B of the IT Act, 1961 leviable even though the audit report had been obtained within time?”
The applicant was given a notice under s. 142(1) dt. 28th Dec., 1990. In compliance of it the assessee has filed its return of income with audit report as required under s. 44AB on 27th March, 1991. The AO imposed penalty under s. 271B. This provision was amended w.e.f. 1st July, 1995.
The order was upheld by the Tribunal. The applicant filed an application to refer the question of law referred to above before the Tribunal. The application has been rejected. Now the application has been filed under s. 256(2).
We have heard Sri Satish Mandhyan, the learned counsel for the applicant, and Shri Prakash Krishna, the learned counsel for the respondent.
The learned counsel for the applicant submitted that the audit report was prepared on 26th Oct., 1990 and the date of obtaining the report was 31st Oct., 1990 and it had complied with the requirements of s. 44AB. It is further submitted that the petitioner had submitted the return under s. 139 and keeping in view s. 139(4) of the Act if any person who has not furnished a return within the time allowed to him under sub-s. (1), or within the time allowed under a notice issued under sub-s. (1) of s. 142 of the Act, may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier, and in view of the said provision if the applicant has not filed the return as required under sub-s. (1) of s. 144 of the Act, he is not liable for penalty.
4. Considering the facts and circumstances of the case, we are of the opinion that a substantial question of law arises. We direct the Tribunal, Allahabad, to draw up statement of facts in the present case and refer the question of law as framed above for opinion of this Court.
[Citation : 257 ITR 574]