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Judgment
The income tax Appellate Tribunal, Allahabad has referred the following question of law u/s 256(1) of the income tax Act, 1961 for opinion of this Court. Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in sustaining the order of the CIT (A), deleting the penalty of Rs. 83,820 imposed u/s 271B of the IT Act, 19691, by holding that no penalty under the said section is exigible for failure to furnish the audit report u/s 44AB along with the return u/s 139(1) if the same is furnished along with the return filed by the assessee u/s 139(4) of the IT Act, 1961?
The reference relates to the assessment year 1990-91.
Briefly stated the facts giving rise to the present reference are as follows:-
Turnover of the assessee exceeding the specified figure of Rs. 40 lakhs they were studded with a legal obligation of filing an Accountant''s report as envisaged by section 44AB of the IT Act, 1961. The specified date in respect of the relevant assessment year 1990-91 was the 31-10-1990 as against which such report was filed by the assessee on the 8-1-1992 along with the belated return. However, in view of the fact that the report was obtained by the assessee on 13-9-1990 i.e., on a date anterior to the specified date and there was no separate provision at the relevant point of time whereunder the assessee should/could have filed an audit report independent of the return, penalty imposed u/s 271B was found by the Tribunal to be non-imposable.
We have heard the learned Standing Counsel for the Revenue. The question referred to this Court is squarely covered by the decision of this Court in the ease CIT v. Jai Durga Construction Co. [2000] 245 1TR 857 in which it has been held that penalty u/s 271-B of the Act cannot be imposed merely because the Audit Report has not been filed along with return prior to the amendment made in the provisions in the year 1995 as the said amendment had no retrospective operation.
In view of the aforesaid discussion we answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the Revenue. There shall be no order as to costs.