Sh. Mahipal Singh v. Order

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. C.M. No.22816-CII of 2008 in/andI.T.A. No.723 of 2008Date of decision: 22.12.2008 Commissioner of Income Tax. Sh. Mahipal Singh. Vs. -----Appellant -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOELHON'BLE MR JUSTICE L.N. MITTAL Present:-Mr. Yogesh Putney, Sr. Standing Counselfor the appellant.for the appellant. ----- ORDER: Delay condoned. The revenue has preferred this appeal under Section 260Aof the Income Tax Act, 1961 (for short, “the Act”) against the orderdated 18.7.2007 passed by Income Tax Appellate Tribunal, DelhiBench ‘G’, New Delhi in I.T.A. No.1741/Del/2006 for the assessmentyear 2002-03, proposing to raise following substantial questions of law:- “1. Whether the Hon’ble ITAT has erred in law in deletingthe penalty of Rs.25,577/- levied by the AO on theassessee u/s 271B although the assessee had clearlyviolated the provisions of section 44AB by not gettinghis accounts of all the businesses audited by theaccountant and furnishing the report of such auditwithin the time specified and the audit report of only a part of the business filed by the assessee could notbe considered as report u/s 44AB of the Income Tax 2. Act because the concept of the turnover is concerningan assessee (person) and not a concern or aparticular business? Whether, the Hon’ble ITAT was right in law in holdingthat the assessee’s view of not getting the accountsaudited of M/s Raj Engg. Works was reasonablethough gross receipts from both the proprietorshipconcerns exceeds Rs.40 Lacs?” The assessee filed his return as proprietor of two concernsbut audit report was filed in respect of one concern. The AssessingOfficer levied penalty under Section 271B of the Act, which wasaffirmed 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 auditreport was for bonafide reasons being pure finding of fact, we areunable to hold that any substantial question of law arises. The appeal is dismissed. ( ADARSH KUMAR GOEL )JUDGE December 22, 2008ashwani ( L. N. MITTAL ) JUDGE