ORDER
1. The Income Tax Appellate Tribunal, Allahabad, has referred the following question of law under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') for opinion to this Court:
Whether the ITAT was justified in cancelling the penalty under Section 271B for the assessment year 1991-92 although the assessee failed to submit audit report along with their return within the time specified under Section 139(1) of the Income Tax Act, 1961?
2. The present reference relates to the assessment years 1990-91 and 1991-92.
3. Briefly stated the facts giving rise to the present reference are as follows:
The respondent-assessee, which has been assessed to income-tax in the status of a registered firm, filed its return for the assessment years 199091 and 1991-92 on 31-3-1992 as against the due date of 31-10-1990. Audit reports have also been filed along with the returns as required under Section 44AB of the Act. On the premises that such audit reports were filed beyond the specified dates, viz., 31-10-1990 and 31-10-1991, penalty proceedings under Section 271B of the Act were initiated and penalty of Rs. 38,367 and Rs. 42,594 for the respective assessment years has been imposed. The appeal before the Commissioner (Appeals) had failed. However, the Tribunal has allowed the appeal and has held that as the audit reports had been obtained by the respondent-assessee on 20-11-1990 and 31-10-1991 in respect of the assessment years 1990-91 and 1991-92 respectively, the Tribunal took the view that with the extension of one month's period for filing of the returns by the Central Board of Direct Taxes, the audit report obtained for the assessment year 1990-91 on 20-11-1990 was well within the time. The Tribunal has also accepted the reasons for late filing of the audit report for the assessment year 1990-91. So far as the assessment year 1991-92 is concerned, it may be mentioned here that the audit report was obtained within time and, therefore, the Tribunal had deleted the penalty on the ground that it was not incumbent upon the respondent-assessee to file audit report before the specified date. The only requirement is to obtain the audit report before the specified date, which in the present case has been done.
4. We have heard Sri A.N. Mahajan, learned standing counsel for the revenue. Nobody has appeared on behalf of the respondent-assessee.
5. We find that the view taken by the Tribunal is in conformity with the decision of the Allahabad High Court in the case of CIT v. Jai Durga Construction Co. , which has been followed by this Court in ITR No. 71 of 1993, decided on 11-3-2005.
6. Respectfully following the aforesaid decisions, we answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the revenue. However, there shall be no order as to costs.