D.K Jain, C.J:— The Income-tax Appellate Tribunal, Delhi Bench “C”, New Delhi (for short “the Tribunal”), has referred under section 256(1) of the Income-tax Act, 1961 (for short “the Act”), the following question for the opinion of this court:
“Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in cancelling the penalties imposed on the assessee under section 271B on the ground that the same were not exigible in a case where the audit report under section 44AB had been obtained on or before the specified date and the same was filed along with a return other than a return under section 139(1) and no notice had been issued to the assessee by the Assessing Officer under section 142(1)(i)?”
2. Since the issue raised in the reference is purely legal and there is no controversy on the facts, it is unnecessary to state the facts in a greater detail.
3. It would suffice to note that penalties amounting to Rs. 25,021 and Rs. 31,142 under section 271B of the Act, in respect of the assessment years 1989–90 and 1990–91, respectively, were levied on the assessee for alleged violation on its part to file audit reports along with the return of income by the due dates for filing returns under section 139(1) of the Act. The due dates for filing return under section 139(1) of the Act were on or before October 31, 1989 and October 31, 1990, respectively. However, the returns of income were actually filed by the assessee on March 26, 1991 and November 1, 1991, respectively, which were accompanied by the audit reports under section 44AB of the Act. Rejecting the stand of the assessee that the return of income having been filed under section 139(4) of the Act, there was no default on the part of the assessee in furnishing the audit reports along with the returns of income filed under sub-section (4) of section 139 of the Act, the Assessing Officer levied the aforementioned penalties.
4. Being aggrieved, the assessee, unsuccessfully preferred appeals to the Commissioner of Income-tax (Appeals). The matter was carried by the assessee in further appeal to the Tribunal. By the impugned order, the Tribunal has deleted the penalties by placing reliance on its earlier orders passed in other cases wherein the return of income had been filed under section 139(4) and prior to the issue of notice under section 142(1) of the Act. In those cases, the Tribunal had come to the conclusion that since the assessee had obtained the audit report as required under section 44AB of the Act on October 28, 1992, i.e, before the specified date and no notice under section 142(1) of the Act had been issued, the provisions of section 271B of the Act were not attracted. On the Revenue's moving application under section 256(1) of the Act, the aforementioned question has been referred to this court. We have heard Mr. Rajesh Bindal, learned counsel for the Revenue. No one appears for the assessee. We find that the issue raised in the reference is no more res integra in so far as this court is concerned. In ITO v. Kaysons India, [2000] 246 ITR 489 (Commissioner Of Income-Tax v. Ashoka Dairy, [2005] 279 ITR 32 (P & H) (Income-tax Reference No. 61 of 1995), it has been held that where the return of income has been filed under subsection (4) of section 139 of the Act and the same is duly accompanied by the audit report obtained by the assessee in accordance with the provisions of section 44AB of the Act, penalty under section 271B of the Act is not exigible. Following the said decisions, with respect, we answer the question in the affirmative, i.e, in favour of the assessee and against the Revenue. Reference stands disposed of.