High Court Of Punjab & Haryana
Kwality Skin Co. vs. Assistant Commissioner Of Income Tax & Anr.
Sections 260A, 271B
Jawahar Lal Gupta & Ashutosh Mohunta, JJ.
IT Appeal No. 47 of 2000
22nd August, 2001
Counsel Appeared
A.K. Mittal with Akshay Bhan, for the Appellant : R.P. Sawhney with Kishan Singh, for the Respondents
JUDGMENT
JAWAHAR LAL GUPTA, J. :
The assessee derives its income from business. Its premises were surveyed on 24th Nov., 1992. On 27th Nov., 1992, the assessee was given a notice under s. 271B of the IT Act, 1961. The assessee filed a reply on 4th Jan., 1993. After recording evidence, the assessing authority levied a penalty of Rs. 99,568. The assessee filed an appal. It was accepted by the CIT(A) vide order dt. 26th Oct., 1993. Aggrieved by the order, the Revenue filed an appeal. The Tribunal having reversed the order of the CIT(A), the assessee has filed this appeal under s. 260A of the Act. Mr. A.K. Mittal, learned counsel for the appellant, contends that the audit report was ready on 30th Oct., 1992. The managing partner of the assessee-firm was sick. Thus, the report could not be collected and produced before the officer at the time of survey. Learned counsel has further pointed out that an affidavit had been filed by the managing partner indicating that he was not well and that the audit report had been prepared by the chartered accountant in October 1992. Admittedly the assessee’s premises were surveyed on 24th Nov., 1992. His statement was recorded. The relevant portion has been reproduced in the order of the Asstt. CIT, a copy of which has been produced as Annexure P-1. It reads as under :
“Q : Where is the audit report ?
A : The report is not lying with me. It is with Shri Jasbir Singh, C.A.
Q : Should we go to the office of Sh. Jasbir Singh, C.A. and collect the report in your presence ?
A : I know that report is not yet ready by this time and it is yet to be prepared.”
A perusal of the above extract from the statement clearly shows that Mr. Rajinder Kumar Arora, the managing partner, did not have the report on 24th Nov., 1992, with him. Still further, when the Surveying Officer had offered to go to the office of Mr. Jasbir Singh the chartered accountant, to collect the report the partner had stated that he knew that the report is not ready. Thus, it is clear that till 24th Nov., 1992, the report had not even been prepared. It is, thus, clear that the assessee’s claim that the audit report was ready by the due date is not correct. Thus, we are not surprised that the Tribunal had felt constrained to reverse the order passed by the CIT(A).
Mr. Mittal has produced before us a copy of the affidavit of Mr. Rajinder Kumar Arora which appears to have been verified on 4th Jan., 1993. It is taken on record as Mark ‘A’. Counsel submits on the basis of the affidavit that the managing partner of the assessee was not well and, thus, the audit report could not be obtained.
We have examined this affidavit. In para 4, it has been stated as under: “4. That at the time of completion of audit on 23rd Oct., 1992, our auditor Sh. Jasbeer Singh C.A. told me that now the audit of M/s Kwality Skin Co. is complete and I could collect the tax audit report from their office-cum-residence in the next week-i.e., in the last week of Oct., 1992.” A perusal of the above shows that the audit had allegedly been completed on 23rd Oct., 1992. This is clearly contradicted by the above noted statement made by Mr. Rajinder Kumar Arora before the officer on 24th Nov., 1992.
No other point has been raised.
In view of the above, we find no infirmity in the order of the AO or that of the Tribunal so as to call for any interference.
The appeal is accordingly dismissed. No costs.
[Citation : 254 ITR 386]