Partha Sarathi Chaudhury ORDER
Inturi Rama Rao, Member (A)
1. These are the appeals filed by the assessee directed against the different orders of ld. Commissioner of Income Tax (Appeals)- 7, Pune ('CIT(A)' for short) commonly dated 29.06.2018 for the assessment years 2014-15 respectively.
2. Since the identical facts and issues are involved in all the appeals, we proceed to dispose of the same by this common order.
3. For the sake of convenience and clarity, the facts relevant to the appeal in ITA No. 1543/PUN/2018 are stated herein.
4. The grounds of appeal raised by the assessee are as under:-
"1. In the facts and circumstances of the case and in law, the impugned penalty of Rs. 1,23,800.00 levied by the learned Assessing Officer under section 271B of the I.T. Act 1961 being arbitrary, perverse, devoid of merits and being bad in law the same may please be deleted.
2. In the facts and circumstances of the case and in law, it may please be held that there was reasonable cause for the appellant assessee for alleged violation of the provisions of Section 44AB of the I.T. Act 1961. In the circumstances, the impugned penalty levied by the learned Assessing Officer may please be deleted.
3. The appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal."
5. Briefly, the facts of the case are as under:-
The appellant is a cooperative society registered under the provisions of Maharashtra Co-operative Societies Act, 1960. The appellant society is engaged in the business of purchase and sale of milk and cattle feeds to its members. The return of income for the assessment year 2014-15 was filed on 01.04.2015 declaring total income at Rs. NIL. Against the said return of income, the assessment was completed by the Income Tax Officer, Ward-1, Pandharpur ('the Assessing Officer' vide order dated 16.12.2016 passed u/s. 143(3) of the Income Tax Act, 1961 ('the Act') at a total income of Rs. 7,62,646/-. The Assessing Officer also initiated penalty proceedings u/s. 274 r.w.s. 271B of the Act by alleging that the appellant had failed to obtain the tax audit report as envisaged under the provisions of section 44AB of the Act. In response to the said show-cause notice, it was explained that the appellant was under a bona-fide belief that there was no requirement of obtaining the audit report u/s. 44AB of the Act since it has maintained the proper books of accounts and got theme audited as per the provisions of the Maharashtra Cooperative Societies Act, 1960 and obtained the audit report on 18th July, 2016 and income is exempt u/s. 80P(2) of the Act. He further submitted that levy of penalty u/s. 271B is not mandatory. It is only discretionary and no penalty can be levied for mere technical breach of law placing reliance on the decision of the Hon'ble Supreme Court in the case of Hindustan Steel Ltd. vs. State of Orissa, MANU/SC/0418/1969 : 83 ITR 26 (SC). Thus, it is pleaded that since it is under the bona-fide impression, there is no requirement of got the books of account audited u/s. 44AB of the Act, this would constitute a reasonable cause for not getting the books of account audited. Therefore, the penalty proceedings initiated u/s. 274 r.w.s. 271B of the Act should be dropped. However, rejecting the above explanation, the Assessing Officer imposed penalty of Rs. 1,23,800/- u/s. 271B of the Act vide order dated 29.06.2017. Even on appeal before the ld. CIT(A), the same was confirmed by the ld. CIT(A).
6. Being aggrieved, the appellant society is in appeal before us.
7. When the matter was called on none appeared on behalf of the assessee despite due service of notice.
8. On the other hand, ld. Sr. DR placed reliance on the orders of the lower authorities justifying levy of penalty u/s. 271B of the Act
9. We heard the ld. Sr. DR and perused the material on record. The only issue in the present appeal relates to validity of the order passed u/s. 271B of the Act. The provisions of section 44AB of the Act provides that where a turnover of the assessee exceeds the prescribed limit, is required to obtain the audit report and file it along with the return of income, failure to do so, attracts levy of penalty u/s. 271B of the Act. The provisions of section 271B provides that where the assessee is prevented by sufficient reasonable cause for obtaining a tax audit report the penalty shall not be levied. Therefore, the question that comes up for our consideration is whether the explanation offered in response to the show cause notice constitutes a reasonable cause for not obtaining the audit report. The explanation of the appellant is that it was under bona-fide belief that there is no requirement under law to obtain the audit report u/s. 44AB as its income was exempt u/s. 80P(2) of the Act and its books accounts were subject to audit by Government Auditor. This explanation was not found to be false by the lower authorities. The lower authorities merely rejected the explanation and proceed with levy of penalty. There is nothing on record to doubt the explanation offered by the appellant society. Therefore, when the assessee entertained bona-fide belief that its account were not subject to audit u/s. 44AB, it would certainly constitute reasonable cause for not obtaining the audit report and, therefore, the question of imposing of the penalty u/s. 271B does not arise. Further, we find audit report under the provisions of Maharashtra Co-operative Society was obtained only 27th June, 2017 and, therefore, occasion for filing the tax audit report along with the return of income does not arise. In the circumstances, we find that the lower authorities was not justified in confirming the levy of penalty and accordingly we direct the Assessing Officer to delete the penalty levied u/s. 271B of the Act.
10. In the result, the appeal of the assessee in ITA No. 1543/PUN/2018 is allowed.
ITA Nos. 1544, 1547, 1549, 1551 and 1553/PUN/2018
11. As mentioned earlier, the facts and issues involved in both the appeals are identical, therefore, our decision in ITA No. 1543/PUN/2018 shall apply mutatis mutandis to the appeal in ITA Nos. 1544, 1547, 1549, 1551 and 1553/PUN/2018. Accordingly, the appeal of the assessee in ITA Nos. 1544, 1547, 1549, 1551 and 1553/PUN/2018 is allowed.
12. Resultantly, all the appeals of the assessee are allowed as above. Order pronounced on this 03rd day of November, 2021.
Order pronounced on this 03rd day of November, 2021.
© Manupatra Information Solutions Pvt. Ltd.