High Court Of Madras
CIT vs. Apex Laboratories (P) Ltd.
Section 44AB, 271B
Asst. Year 1994-95
K. Raviraja Pandian & P.P.S. Janarthana Raja, JJ.
Tax Case (Appeal) No. 812 of 2008
8th July, 2008
Counsel Appeared :
J. Narayanasamy, for the Appellant
JUDGMENT
K. Raviraja Pandian, J. :
The correctness of the order of the Tribunal dt. 10th Feb., 2005, ITA No. 880/Mad/1999 is put in issue by formulating the following questions of law : “1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that no penalty is imposable under s. 271B for non-compliance with the provisions of s. 44AB on the ground that the returns were filed belatedly neither under s. 139 nor on a notice under s. 142 of the Act ?
2. Whether on the facts and in the circumstances of the case, the Tribunal was right in deleting the penalty without giving a finding of fact as to whether the tax audit report had been obtained within the prescribed time by the assessee ?” 2. The relevant assessment year is 1994-95. Learned standing counsel appearing for the Revenue fairly submitted that the assessee’s own case involving similar questions of law for the asst. yr. 1993-94 has been decided against the Revenue in CIT vs. Apex Laboratories (P) Ltd. (2006) 284 ITR 364 (Mad) [Tax Case (Appeal) No. 1565 of 2005], wherein by a judgment dt. 24th Jan., 2006, a Division Bench of this Court has dismissed the appeal filed by the Revenue by observing thus (page 366) : “We heard the learned standing counsel appearing for the Revenue, who submitted that there cannot be a situation where a person files his appeal on time, but does not file his audit report on time, should be in a worse situation than a person who files both belatedly. She further submitted that the Tribunal ought to have given a finding of the fact as to when the audit report was signed, and thereafter decide the issue on whether the audit report had been obtained within the time prescribed by the statute. In this case, the due date for return was 31st Dec.,1993. The assessee filed his return belatedly on 31st March,1997. It may be seen that the return was not filed within the time-limit stipulated under s. 139(1). The return for the asst. yr. 1993-94 was time barred by 31st March, 1995, and the AO did not issue any notice under s. 142(1) calling for furnishing of the return for the said year and so, the return could not be taken as filed in response to notice under s. 142 also. Since s. 271B envisage levy of penalty for failure to get his accounts audited, obtain a report of such audit and furnish the said report along with his return of income filed under s. 139 (1) or in response to notice under s. 142(1), the submission that the audit report should have been filed within the specified date was not correct, as the specified dates only arise to return filed under s. 139(1) or response to notice under s. 142(1)(i). Hence, when the return was not filed under the provision of law, no default could be made out under s. 44AB. In this case, the penalty is leviable only if the assessee fails to get his accounts audited and obtain a report. In this case, the accounts were audited and also the assessee got the audit report, but the same was filed along with the return which was filed belatedly. Hence, penalty cannot be imposed under s. 271B of the Act.”
3. In view of the decision of this Court cited supra, the appeal is dismissed. No costs.
[Citation : 320 ITR 498]
