K Venkata Rama Reddy, Kamareddy , Kamareddy V. Asst. Commissioner of Income Tax, Circle-1, Nizamabad

ITA 1986/Hyd/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8231 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 19-07-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 01-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Bonafide belief; Reasonable cause; TDS; Set aside
• Section: 273B; 271B; 44AB; 13; 27; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NOS.1986 & 1987/HYD/201 7 AYS: 2012 - 13 AND 2013 - 14 K. VENKATA RAMA REDDY, KAMAREDDY. PAN: ANBPK 2459 B VS. ACIT, CIRCLE - 1, NIZAMABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI A. SRINIVAS REVENUE BY SHRI ROHIT MUJUMDAR, DR DATE OF HEARING: 19 /0 7 /2021 DATE OF PRONOUNCEMENT: 11 /0 8 /2021 ORDER PER A. MOHAN ALANKAMONY , A.M: THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) 5, HYDERABAD IN APPEAL NO. 0344 & 346/2016 - 17/CIT(A) - 5, DATED 22/09/2017 PASSED U/S. 271B R.W.S 250(6) OF THE ACT FOR THE AYS 2012 - 13 AND 2013 - 14. 2. THE LONE IDENTICAL GROUNDS RAI SED BY THE ASSESSEE IN BOTH THESE APPEALS FOR THE AY 2012 - 13 AND 2013 - 14 IS THAT THE LD. CIT (A) HAS ERRED IN CONFIRMING THE PENALTY LEVIED BY THE AO INVOKING THE PROVISIONS 2 OF SECTION 271B OF THE ACT AMOUNTING TO RS. 1,40,420/ - AND RS. 1,50,000/ - RESPECTIV ELY. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS AS A CIVIL CONTRACTOR. 4. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, IT WAS OBSERVED BY THE LD. AO THAT THE ASSESSEE HAD BELATEDLY FILED AUDIT REPORT THEREFORE HE INVOKED THE PROVISIONS OF SECTION 271B OF THE ACT. DURING THE COURSE OF PENALTY PROCEEDINGS U/S. 271B OF THE ACT THE ASSESSEE HAD STATED THAT DELAY IN FILING TH E AUDIT REPORT BEYOND THE DUE DATE WAS BECAUSE THE ASSESSEES CLIENTS FAILE D TO FURNISHING THE TDS CERTIFICATE PROMPTLY AND THEY HAD HANDED OVER THE CERTIFICATE TO THE ASSESSEE AFTER PROLONGED PERIOD . THE ASSESSEE HAD FURTHER CONTENDED THAT THE AUDIT REPO RT WAS FURNISHED DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS AND THEREFORE NO PREJUDICE WAS CAUSED TO THE REVENUE . HOWEVER, THE LD. AO REJECTED THE SUBMISSION OF THE ASSESSEE AND LEVIED PENALTY FOR BOTH THE ASSESSMENT YEARS BY OBSERVING AS UNDER: A.Y.: 2012 - 13 5. HOWEVER, THE POINTS RAISED BY THE ASSESSEE ARE NOT ACCEPTABLE FOR THE REASON THAT THIS IS AN AUDITABLE CASE AND THE REASONS FURNISHED BY THE ASSESSEE ARE NOT CONVINCING TO NOT TO LEVY THE PENALTY FOR THE REASONS DISCUSSED AS UNDER: A. NON RECEIPT OF CREDIT FOR TDS IN 26AS FOR A.Y. 2012 - 13 CANNOT BE THE REASON FOR NON - FURNISHING THE AUDIT REPORT IN DUE DATE TO IT OFFICE. 3 B. ASSESSEES CONTENTION THAT THERE IS NO WILFUL INTENTION FOR NON - FILING HIS RETURN OF INCOME IS NOT USEFUL FOR ASSESSEE . IT WAS THE REQUIREMENT OF LAW TO GET THE BOOKS OF A/CIT(A) AUDITED & FILE THE RETURN OF INCOME WITHIN THE DUE DATES PRESCRIBED. C. THE REASONS FOR NON - SUBMISSION OF AUDIT REPORT ARE GENERAL & NOT SPECIFIC. IN LAST FEW YEARS IN LARGE NUMBER OF CASES TDS CR EDIT IS NOT RECEIVED IN 26AS, BUT THEY HAVE PREPARED AUDIT REPORT & FILED RETURN OF INCOME IN DUE TIME. D. PROSECUTION NOTICE U/S. 276CC & PAYMENT OF COMPOUNDING FEES NOT RELEVANT AS FAR AS DEFAULT U/S. 271B IS CONCERNED. 6.. 7. IN VIEW OF THE ABOVE, I C ONSIDER THAT IT IS A FIT CASE TO LEVY PENALTY U/S. 271B OF INCOME TAX ACT, 1961 AND ACCORDINGLY, THE PENALTY U/S. 271B OF THE INCOME TAX ACT, 1961 IS LEVIED AS UNDER: 8. THE WORKING OF PENALTY TO BE LEVIED IS AS UNDER: TOTAL SALES / TURNOVER / GROSS RECEI PTS : RS. 2,80,84,882/ - 0.5% OF GROSS RECEIPTS RS. 1,40,420/ - 0.5% OF GROSS RECEIPTS - RS. 1,40,420 OR MAXIMUM PENALTY - RS. 1,50,000 A.Y. 2013 - 14: 5. HOWEVER, THE POINTS RAISED BY THE ASSESSEE ARE NOT ACCEPTABLE FOR THE REASON THAT THIS IS AN AUDITABLE CASE AND THE REASONS FURNISHED BY THE ASSESSEE ARE NOT CONVINCING TO NOT TO LEVY THE PENALTY FOR THE REASONS DISCUSSED AS UNDER: A. NON RECEIPT OF CREDIT FOR TDS IN 26AS FOR A.Y. 2012 - 13 CANNOT BE THE REASON FOR NON - FURNISHING THE AUDIT REPORT IN DUE DATE TO IT OFFICE. B. ASSESSEES CONTENTION THAT THERE IS NO WILFUL INTENTION FOR NON - FILING HIS RETURN OF INCOME IS NOT USEFUL FOR ASSESSEE. IT WAS THE REQUIREMENT OF LAW TO GET THE BOOKS OF A/CIT(A) AUDITED & FILE THE RETURN OF INCOME WITHIN THE DUE DATES PRESCRIBED. C. THE REASONS FOR NON - SUBMISSION OF AUDIT REPORT ARE GENERAL & NOT SPECIFIC. IN LAST FEW YEARS IN LARGE NUMBER OF CASES TDS CREDIT IS NOT RECEIVED IN 26AS, BUT THEY HAVE PREPARED AUDIT REPORT & FILED RETURN OF INCOME IN DUE TIME. D. PROSECUTION NOTICE U/S. 276CC & PAYMENT OF COMPOUNDING FEES NOT RELEVANT AS FAR AS DEFAULT U/S. 271B IS CONCERNED. E. NON - FILING THE ROI FOR A.Y. 2013 - 14 BECAUSE OF PENDING OF FILING RETURN FOR EARLIER YEARS IS NOT ACCEPTABLE. 4 6.. 7 .. 8. IN VIEW OF THE ABOVE, I CONSIDER THAT IT IS A FIT CASE TO LEVY PENALTY U/S. 271B OF INCOME TAX ACT, 1961 AND ACCORDINGLY, THE PENALTY U/S. 271B OF THE INCOME TAX ACT, 1961 IS LEVIED AS UNDER: 8. THE WORKING OF PENALTY TO BE LEVIED IS AS UNDER : TOTAL SALES / TURNOVER / GROSS RECEIPTS : RS. 4,15,81,957 / - 0.5% OF GROSS RECEIPTS RS. 2,07,910 / - 0.5% OF GROSS RECEIPTS - RS. 2,07,910 OR MAXIMUM PENALTY - RS. 1,50,000 5. ACCORDINGLY, THE PENALTY WAS LEVIED U/S. 271B OF THE ACT FOR RS. 1,40,420 AND RS. 1,50,000 FOR THE AY 2012 - 13 AND 2013 - 14 RESPECTIVELY. ON APPEAL, THE LD. CIT (A) CONFIRMED THE ORDER OF THE LD. AO FOR BOTH THE ASSESSMENT YEARS BY OBSERVING AS UNDER: 9. THE REPLY SUBMITTED BY THE ASSESSEE WAS CONSIDERED. HO WEVER, THE REASONS MENTIONED BY THE ASSESSEE ARE NOT GENUINE TO PREVENT THE ASSESSEE TO GET ITS ACCOUNTS AUDITED BEFORE THE SPECIFIED DATE. A PLAIN READING OF SECTION 273B MAKES IT CLEAR THAT THE SAME IS PROCEDURAL LAW WITH REGARD TO THE QUESTION OF IMPOS ITION OF PENALTY UNDER DIFFERENT SECTIONS INCLUDING S. 271B. SEC. 271B MANDATES IMPOSITION OF PENALTY ON THE FAILURE BUT, BY REASON OF THE RULE OF EVIDENCE PROVIDED IN S. 273B, SUCH IMPOSITION OF PENALTY IS DEPENDENT ON THE PROOF THAT THERE WAS NO REASONAB LE CAUSE FOR THE FAILURE. THE OMISSION OF THE PARTICULAR PHRASE FROM THE SUBSTANTIVE LAW AND INCORPORATION THEREOF IN THE PROCEDURAL LAW BEARS THE LEGISLATIVE INTENT TO MAKE THE PROVISION OF S. 271B COERCIVE INSTEAD OF PENAL. THIS AMENDMENT WAS INTENDED TO REMOVE THE SCOPE OF ANY CONFUSION WITH REGARD TO THE CHARACTERISTICS AND NATURE OF THE PROCEEDINGS U/S. 271B. THE WORD MAY EMPLOYED IN S. 271B, THOUGH MAY BE INTERPRETED AS DISCRETIONARY YET THAT DISCRETION IS LIMITED WITHIN THE CONFINES OF S. 273B P ROVIDING THE PROCEDURE THEREFORE. THE WORD MAY HAS BEEN USED ONLY TO ACCOMMODATE THE PROCEDURAL LAW ENABLING THE ASSESSEE TO PROVE THAT THERE WAS REASONABLE CAUSE FOR THE FAILURE. UNLESS IT IS PROVED THAT THERE WAS REASONABLE CAUSE FOR THE FAILURE, THE RE IS NO ESCAPE FROM THE IMPOSITION OF PENALTY. SEC. 271B DOES NOT LEAVE ANY DISCRETION AT THE HANDS OF THE AUTHORITY EXCEPT AS PROVIDED IN S. 273B. IT IS ONLY WHEN REASONABLE CAUSE FOR FAILURE IS PROVED, THE PENALTY CAN BE AVOIDED. A COMBINED READING O F THE TWO SECTIONS DOES NOT ADMIT OF ANY 5 THEORY OF ABSOLUTE DEFAULT IN ORDER TO ATTRACT THE MISCHIEF OF S. 271B. IF THERE IS A DEFAULT, THEN THE PENALTY CAN BE IMPOSED. IT IS NOT NECESSARY THAT THE DEFAULT IS TO CONTINUE TILL IMPOSITION OF PENALTY. THE READING OF SECTION 271B DOES NOT IMPLY THAT THE DEFAULT MUST BE A CONTINUOUS ONE AND THAT IF THE AUDIT IS MADE BEFORE THE COMPLETION OF THE ASSESSMENT THEN THE PENALTY IS NOT IMPOSABLE. SUCH A CONSTRUCTION CANNOT BE MADE HAVING REGARD TO THE LANGUAGE EMPLO YED IN S. 271B R/W S 273B. [CIT VS. CAPITAL ELECTRONICS (2003) 181 CTR (CAL) 402: (2003 262 ITR 4 (CAL), CIT VS. RAMKRISHNA STORES (2002) 172 CTR (CAL) 525: (2002) 253 ITR 175 (CAL) FOLLOWED]. 6. BEFORE US, THE LD. AR VEHEMENTLY ARGUED BY REITERATING THE SUBMISSIONS MADE BEFORE THE LD. REVENUE AUTHORITIES AND FURTHER RELIED IN THE DECISION RENDERED BY THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ARKA EDUSERV PRIVATE LIMITED IN ITA NO.718 /BANG/2018 FOR THE AY 2014 - 15 VIDE ORDER DATED 13/12/2019 AND PLEADED TO DELETE THE PENALTY LEVIED AND CONFIRMED BY THE LD. REVENUE AUTHORITIES U/S. 271B OF THE ACT. LD. DR ON THE OTHER HAND ARGUED IN SUPPORT OF THE ORDERS OF THE LD. REVENUE AUTHORITIES AN D PRAYED FOR CONFIRMING THEIR ORDERS. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. AS POINTED OUT BY THE LD. AR WE FIND THAT IN SUCH IDENTICAL CIRCUMSTANCES THE BANGALORE BENCH OF THE TRIBUNAL HAS HELD THE ISSUE IN FAVOUR OF THE ASSESSEE AND DELETING THE PENALTY LEVIED U/S. 271B OF THE ACT WHEN THE AUDIT REPORT WAS FILED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. THE RELEVANT PORTION OF THE ORDER OF THE BANGALORE BENCH OF THE TRIBUNAL IS EXTRACTED HEREIN BELOW FOR REFERENCE: 5. WE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE TAX AUDIT REPORT WAS FILED ALONG 6 WITH THE RETURN OF INCOME, I.E., IT WAS AVAILABLE WITH THE ASSESSING OFFICER BEFORE THE COMPLETION OF ASSESSMENT. THOUGH THE LD CIT(A) HAS GIVEN A FINDING THAT THE ASSESSEE HAS FURNISHED TAX AUDIT REPORTS WITHIN THE DUE DATE IN THE EARLIER YEARS, IT WAS NOT EXAMINED AS TO WHETHER THEY WERE FURNISHED ALONG WITH RETURN OF INCOME OR SEPARATELY. THERE IS AL SO NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE HAD OBTAINED TAX AUDIT REPORT WITHIN THE DUE DATE PRESCRIBED U/S 44AB OF THE ACT. THE EXPLANATION OF THE ASSESSEE WAS THAT IT WAS UNDER THE IMPRESSION THAT THE TAX AUDIT REPORT COULD BE FILED BEFORE 3 1.3.2015 AND FURTHER THE RETURN OF INCOME COULD NOT BE FILED FOR WANT OF RECONCILIATION OF TDS AMOUNTS WITH FORM NO.26AS. IT APPEARS THAT THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE RETURN OF INCOME COULD BE FILED ANYTIME BEFORE 31.3.2015 AND THE TAX AU DIT REPORT COULD ALSO BE FILED ALONG WITH RETURN OF INCOME. ACCORDING TO LD A.R, THE ASSESSEE WAS UNDER SUCH BONAFIDE BELIEF AND ACCORDINGLY THE EXPLANATIONS FURNISHED BY THE ASSESSEE WOULD CONSTITUTE REASONABLE CAUSE WITHIN THE MEANING OF SEC.273B OF THE ACT. 6. BE THAT AS IT MAY, WE NOTICE THAT THE COCHIN BENCH OF TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE IN THE CASE OF ATTINKARA ELECTRONICS VS. ITO (ITA NO.601/COCH/2018 DATED 01 - 03 - 2019) AND THE PENALTY LEVIED U/S 271B OF THE ACT WAS DELETED WITH THE FOLLOWING OBSERVATIONS: - 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE WAS REQUIRED TO GET HIS BOOKS OF ACCOUNT AUDITED AS PER THE PROVISIONS OF SECTION 44AB OF THE ACT BEFORE 30/09/2012 FOR THE A.Y. 2012 - 13. THE ASSESSEE GO T THE BOOKS AUDITED ON 24/03/2014 AND THE SAME WAS FURNISHED BEFORE THE ASSESSING OFFICER ON 27/03/2014. THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER ON 26/03/2015. HOWEVER, THERE WAS DELAY IN FURNISHING THE AUDIT REPORT IN COMPLIANCE WITH SECT ION 44AB OF THE ACT. THE CONTENTION OF THE LD. AR IS THAT THE REASON FOR DELAY IN FURNISHING THE AUDIT REPORT BELATEDLY WAS DUE TO THE ILL HEALTH OF THE PARTNER SHRI NAUSHAD S. FROM 20.09.2012 TO 19.10.2012 COUPLED WITH MALFUNCTIONING OF THE COMPUTER AND L OSS OF ENTIRE DATA DUE TO HARDWARE DAMAGE. FOR THIS PURPOSE, THE LD. AR RELIED ON THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF STAR AGENCIES VS. ITO (23 CCH 646) WHEREIN I.T.A. NO.601/COCH/2018 IT WAS HELD THAT EVEN THOUGH ASSESSEE COULD NOT GET THE ACCOUNTS AUDITED WITHIN TIME BUT HAVING FILED THE AUDIT REPORT ALONG WITH THE RETURN, NO PENALTY U/S. 271B WAS ATTRACTED. FURTHER, ILLNESS OF ONE OF THE PARTNERS CONSTITUTED REASONABLE CAUSE FOR THE DELAY. HE ALSO RELIED ON THE RECENT DE CISION OF THIS TRIBUNAL IN THE CASE OF JOHNS BIWHEELERS VS. ACIT IN ITA NO.411/COCH/2018 DATED 05/02/2019 WHEREIN IT WAS HELD AS UNDER: '7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IN THIS CASE, THE ASSESSEE WAS REQUIRED TO GET HIS BOO KS OF ACCOUNT AUDITED AND FILED ALONG WITH THE RETURN OF INCOME U/S. 44AB WITHIN THE DUE DATE OF 30/09/2012 FOR THE ASSESSMENT YEAR 2012 - 13.. HOWEVER, THE AUDIT REPORT WAS FURNISHED ONLY ON 28/03/2014. THE CONTENTION OF THE 7 LD. AR WAS THAT THE DELAY IN FIL ING THE RETURN OF INCOME WAS DUE TO DAMAGE TO COMPUTER SYSTEM DUE TO VIRUS INFECTION WHICH IS A REASONABLE CAUSE AS PRESCRIBED U/S. 273B OF THE I.T. ACT. THE LD. AR RELIED ON THE FOLLOWING JUDGMENTS IN SUPPORT OF HIS CONTENTIONS: I) CIT VS. MALAYALAM PLANTATI ONS LTD. (1976) (103 ITR 835) (KER.) II) ACIT VS. AMAR CHAND RAJ KUMAR (2004) (89 ITD 96)(ITAT, CHANDIGARH) III) PREM PRAKASH SENAPATI VS. ITO (ITA NO.459&185/CTK/2017 DATED 17/04/2018) (ITAT, CUTTACK). 7.1 FROM THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THE ASSESSEE GOT HIS BOOKS OF ACCOUNTS AUDITED ON 28/03/2014 WHICH WAS MADE AVAILABLE TO THE ASSESSING OFFICER AND NO PREJUDICE HAS BEEN CAUSED TO THE REVENUE. NOW THE SHORT QUESTION THAT ARISES IS WHETHER IN THIS SCENARIO, PENALTY U/S. 271B OF THE ACT CAN BE LEVIED OR NOT. IN OUR CONSIDERED OPINION, THE ASSESSEE HAD ONLY COMMITTED TECHNICAL VENIAL BREACH WHICH DOES NOT CREATE ANY LOSS TO THE EXCHEQUER AS THE AUDIT REPORT WAS AVAILABLE TO THE ASSESSING OFFICER BEFORE THE COMPLETION OF THE ASSE SSMENT PROCEEDINGS. THE MADRAS HIGH COURT IN THE CASE OF CIT VS. A.N. ARUNACHALAM (208 ITR 481) IN THE CONTEXT OF FILING OF AUDIT REPORT FOR CLAIMING DEDUCTION U/S. 80J OF THE ACT, OBSERVED THAT ONCE AUDIT REPORT HAS BEEN MADE AVAILABLE BEFORE THE LD. ASSE SSING OFFICER BEFORE THE COMPLETION OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SHOULD BE GRANTED DEDUCTION U/S. 80J OF THE ACT. WE OBSERVE THAT THIS JUDGMENT WAS RENDERED IN THE CONTEXT OF ADJUDICATION OF QUANTUM OF DEDUCTION CLAIMED BY THE ASSESSEE. HENCE, T HE SAID ANALOGY CAN VERY WELL BE DRAWN AND USED IN THE PENALTY PROCEEDINGS LIKE THAT OF THE ASSESSEE. TO SUM UP, WE HOLD THAT THE ASSESSEE HAD COMMITTED ONLY TECHNICAL VENIAL BREACH FOR WHICH HE CANNOT BE PENALIZED. IN VIEW OF THE ABOVE, WE ARE INCLINED TO DELETE THE PENALTY MADE BY THE ASSESSEE U/S. 271B OF THE ACT. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 8.1 IN OUR OPINION, THE CASE OF THE ASSESSEE WILL SQUARELY FIT INTO THE RATIO LAID DOWN IN THE ABOVE CASES CITED SUPRA. THE ASSESSEE HAS COMITTED ONLY TECHNICAL VENIAL BREACH WHICH DOES NOT CREATE ANY LOSS TO THE EXCHEQUER. THE AUDIT REPORT WAS FILED BEFORE THE ASSESSING OFFICER BEFORE THE COMPLETION OF THE ASSESSMENT. THE ILL HEALTH OF THE PARTNER SHRI NAUSHAD S AND THE MALFUNCTIONING OF THE COMPUTER DUE TO HARDWARE DAMAGE ARE REASONABLE CAUSES FOR NOT FURNISHING THE AUDIT REPORT BEFORE THE ASSESSING OFFICER WITHIN THE STIPULATED TIME. HENCE, WE ARE INCLINED TO HOLD THAT THIS IS NOT A FIT CASE FOR LEVYING PENALTY U/S. 271B. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 8 7. IN THE INSTANT CASE, UNLIKE IN THE CASE CITED ABOVE, THE AUDIT REPORT WAS OBTAINED WITHIN THE DUE DATE PRESCRIBED U/S 44AB OF THE ACT. THE DELAY HAS OCCURRED DUE TO DELAY IN FILING RETURN OF I NCOME. THE ASSESSEE HAS STATED THAT IT WAS UNDER BONAFIDE BELIEF THAT THE AUDIT REPORT COULD ALSO BE FILED BEFORE 31.3.2015. THERE IS ALSO NO DISPUTE WITH REGARD TO THE FACT THAT THE AUDIT REPORT WAS AVAILABLE WITH THE ASSESSING OFFICER BEFORE HE COMPLETED THE ASSESSMENT. HENCE THE VIEW TAKEN BY THE COCHIN BENCH OF TRIBUNAL THAT THE DELAY IN FURNISHING AUDIT REPORT HAS RESULTED ONLY IN TECHNICAL VENIAL BREACH WHICH DOES NOT CAUSE ANY LOSS TO EXCHEQUER COULD BE APPLIED HERE ALSO. ACCORDINGLY, FOLLOWING THE A BOVE SAID DECISION OF COCHIN BENCH OF TRIBUNAL, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) AND DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S 271B OF THE ACT FOR THE YEAR UNDER CONSIDERATION. 8. SINCE IN THE CASE OF THE ASSESSEE ALSO THE AUDIT REPORT IS F ILED DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS, WE DO NOT FIND ANY PREJUDICE CAUSED TO THE REVENUE. FURTHER, THE REASON ADDUCED BY THE ASSESSEE THAT THERE WAS A DELAY IN OBTAINING THE TDS CERTIFICATION FROM HIS CLIENTS APPEARS TO BE GENUINE. HENCE, CONSIDERING THE DECISION OF THE BANGALORE BENCH OF THE TRIBUNAL CITED SUPRA AND FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE, WE HEREBY SET ASIDE THE ORDER OF THE LD. CIT (A) AND FURTHER DIRECT THE LD. AO TO DELETE THE PENALTY LEVIED U/S. 27 1B OF THE ACT IN THE HANDS OF THE ASSESSEE FOR THE AY 2012 - 13 AND 2013 - 14 FOR RS. 1,40,420/ - AND RS. 1,50,000/ - RESPECTIVELY. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON THE 11 TH AUGUST, 2021. 9 SD/ - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 11 TH AUGUST , 2021. OKK COPY TO: - 1) SRI K. VENKATA RAMA REDDY, 5 - 6 - 530, NGOS COLONY, KAMAREDDY 503111. 2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 1, NIZAMABAD. 3) THE CIT (A) - 5, HYDERABAD. 4) THE PR CIT - 5, HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE