Commissioner Of Income Tax vs Sh. Mahipal Singh on 22 December, 2008

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                            CHANDIGARH.

                                         C.M. No.22816-CII of 2008 in/and
                                                    I.T.A. No.723 of 2008
                                             Date of decision: 22.12.2008

Commissioner of Income Tax.
                                                            -----Appellant
                                   Vs.
Sh. Mahipal Singh.
                                                         -----Respondent

CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
        HON'BLE MR JUSTICE L.N. MITTAL

Present:-   Mr. Yogesh Putney, Sr. Standing Counsel
            for the appellant.
                  -----

ORDER:

Delay condoned.

The revenue has preferred this appeal under Section 260A

of the Income Tax Act, 1961 (for short, “the Act”) against the order

dated 18.7.2007 passed by Income Tax Appellate Tribunal, Delhi

Bench ‘G’, New Delhi in I.T.A. No.1741/Del/2006 for the assessment

year 2002-03, proposing to raise following substantial questions of law:-

“1. Whether the Hon’ble ITAT has erred in law in deleting

the penalty of Rs.25,577/- levied by the AO on the

assessee u/s 271B although the assessee had clearly

violated the provisions of section 44AB by not getting

his accounts of all the businesses audited by the

accountant and furnishing the report of such audit

within the time specified and the audit report of only a
I.T.A. No.723 of 2008

2

part of the business filed by the assessee could not

be considered as report u/s 44AB of the Income Tax

Act because the concept of the turnover is concerning

an assessee (person) and not a concern or a

particular business?

2. Whether, the Hon’ble ITAT was right in law in holding

that the assessee’s view of not getting the accounts

audited of M/s Raj Engg. Works was reasonable

though gross receipts from both the proprietorship

concerns exceeds Rs.40 Lacs?”

The assessee filed his return as proprietor of two concerns

but audit report was filed in respect of one concern. The Assessing

Officer levied penalty under Section 271B of the Act, which was

affirmed by the CIT(A). The Tribunal, however, set aside the penalty,

accepting the bonafides of the assessee.

The finding recorded by the Tribunal that non-filing of audit

report was for bonafide reasons being pure finding of fact, we are

unable to hold that any substantial question of law arises.

The appeal is dismissed.

                                           ( ADARSH KUMAR GOEL )
                                                  JUDGE


December 22, 2008                                 ( L. N. MITTAL )
ashwani                                               JUDGE