Income-tax---

----Penalty---Audit of accounts---Failure to get accounts audited---Imposition of penalty, whether justified---Provisions of S.44-AB and S.271-B inserted by Finance Act, 1984, with effect from 1-4-1985---Assessing Officer directed to consider explanation of assessee and whether there was "reasonable cause" for failure to submit audited accounts---Indian Income Tax Act, 1961, Ss.44-AB & 271-B.

The Income-tax Officer imposed a penalty of Rs.40,162- on the assessee under section 271-B of the Income Tax Act, 1961, for the assessment year 1985-86. The assessee's appeal before the Commissioner of Income-tax failed. On further appeal; the Tribunal confirmed the levy of penalty. On a reference, the assessee contended that it had shown "reasonable cause" for its failure to get its accounts audited in respect of the previous year under section 271-B and, therefore, the levy of penalty was not valid. The assessee further contended that section 271-B was inserted by the Finance Act of 1984 with effect from April 1, 1985, and section 44-AB creating obligation on the part of the assessee to get the accounts audited also came into force with effect from April 1, 1985, and that these provisions were not in the statute book during the relevant previous year and, therefore, the assessee could not make arrangements to get the accounts audited as prescribed under the above provisions, that when the notice was issued proposing to levy penalty the assessee filed a detailed reply, inter alia, pointing out that even though a sincere endeavour was made to get the services of an accountant, it could not succeed in getting one for auditing the accounts in view of various reasons, that there was no obligation to furnish the audited accounts as referred to in the notice during the relevant assessment year, that the assessee pleaded that it be granted sufficient time to get the accounts audited and furnish the audited accounts and that irreparable injury and hardship would be caused to the assessee if such time was not granted:

Held, that taking into account the circumstances pointed out by the assessee it could not be said that there was a total defiance of law by the assessee in submitting the audited accounts. The explanation offered by the assessee had not properly been appreciated or evaluated by the income-tax authorities. The question which required to be decided by the officer was whether the explanation offered by the assessee would constitute a "reasonable cause" for not submitting the audited accounts during the relevant year. This was a matter which required to be considered and decided afresh by the Assessing Officer.

[The Court declined to answer the question but, however, directed the Assessing Officer to consider the explanation offered by the assessee and decide whether "reasonable cause" had been made out for its failure to submit the audited accounts.]

C. Kochunni Nair and S. Vinod Kumar for the Assessee.

P.K.R. Menon and N.R.K. Nair for the Commissioner.

JUDGMENT

P. A. MOHAMMED, J.---This income-tax reference is coming before us at the instance of the assessee. The question of law referred to us for decision is as follows:

"Whether, on the facts and in the circumstances of the case, the imposition of penalty of Rs.40,162 under section 271-B was justified?"

The assessment year in question is 1985-86. As per annexure-A order passed by the Income-tax Officer a penalty of Rs.40,162 was imposed under section 271-B of the Income-tax Act. As against the said order, the assessee filed an appeal before the Commissioner of Income-tax but met with no success. Thereafter, the assessee filed a further appeal before the Income- tax Appellate Tribunal, Cochin Bench, as I.T.A. No.133/Cock. of 1989. The Appellate Tribunal, however, dismissed the appeal in confirmation of the levy of penalty. Since the Tribunal refused to refer the question for consideration before this Court, the assessee moved this Court and obtained a direction to the Tribunal to refer the question to this Court. That is how the matter is before us now.

Counsel submitted that "reasonable cause" has been made out for the assessee's failure to get its accounts-audited-in-respect of the previous year under section 271-B of the Act and, therefore, the levy of penalty is unsustainable. In this context, counsel submitted that section 271-B was inserted by the Finance Act of 1984 with effect from April 1, 1985. He also pointed out section 44-AB creating an obligation on the part of the assessee to get the accounts audited also came into force with effect from April 1, 1985. In other words, what is contended by the assessee is that the above provisions were not there in the statute during the previous years and, therefore, the assessee could not make arrangements to get the accounts audited as prescribed under the above provisions. When the notice was issued proposing to levy penalty the assessee filed a detailed reply, inter alia, pointing out that even though sincere endeavour was made to get the services of an accountant, it could not succeed in getting one for auditing in view of various reasons. It is further contended that there was no obligation to furnish the audited accounts as referred to in the notice during the relevant year. However, the assessee further pleaded that the firm may be granted sufficient time to get the accounts audited and furnish the audited accounts. He also pointed out that irreparable injury and hardship would be caused to the firm if such time was not granted. Of course, the assessee earlier submitted an application for extension of time for submitting the audited accounts. In the aforesaid circumstances, it cannot be said that there was a total defiance of law by the assessee in submitting the audited accounts. The assessee was submitting the explanation for its failure to submit the audited accounts as a prudent business firm. It was not submitting audited accounts for the previous years since it was not compulsory. It became compulsory for the first time only during the assessment year 1985-86. After going through the documents in the case and on hearing counsel, we are of the view that the explanation offered by the assessee as against the proposal to levy penalty had not properly been appreciated or evaluated by the authorities below. The question which requires to be decided by the officer is whether the explanation offered by the assessee would constitute a "reasonable cause" for not submitting the audited accounts during the relevant year. This is a matter, which, according to us, requires to be considered and decided afresh by the Assessing. Officer. As there is no proper decision in this regard, we found it difficult to answer the question referred to us for decision.

In view of what is said above, we decline to answer the question referred to us. However, we direct the Assessing Officer to consider the explanation offered by the assessee and decide whether "reasonable cause" has been made out for its failure to submit the audited accounts. The income -tax reference case is disposed of as above.

A copy of this judgment under the seal of this Court and the signature of the Registrar shall be sent to the Income-tax Appellate Tribunal; Cochin Bench.

M.B.A./4096/FCOrder accordingly