Per Bench. - These are two appeals by assessee against the order of ld. CIT (A) in confirming the order under section 271BA of the IT Act relating to assessment years 2003-04 and 2004-05.

2. As per provisions of section 92E, the assessee was required to obtain a report from an Accountant and furnish such report in Form 3CEB on or before the specified date in the prescribed form duly signed and verified in the prescribed manner by such accountant and setting forth such particulars as may be prescribed. The assessee failed to furnish report from an Accountant as required by section 92E for both the years. In the provisions of section 92E it has been provided that where the assessee failed to furnish a report from an accountant, the Assessing Officer may direct that such person shall pay by way of penalty a sum of Rs. 1 lakh. Since the assessee failed to furnish the said report, the Assessing Officer issued a show cause. In reply it was contended that the assessee was not aware of the provisions of transfer pricing law and requirement under those provisions as they were introduced in the immediately preceding financial year only. It was also submitted that the assessee’s books of account were audited under section 44AB as required under the provisions of law. The auditor’s report has been prepared by the authorized Chartered Accountant who has also not advised that assessee is liable to file auditor’s report as per provisions of section 92E in prescribed form 3 CEB. Therefore, there was a bona fide mistake on the part of the assessee. It was also submitted that during the assessment proceedings when this fact came to the knowledge of the assessee, immediately the compliance was made as provided under section 92E and the audit report was obtained in prescribed form 3CEB and the same was filed before completion of the assessment. Accordingly it was submitted that there was a bona fide mistake on the part of the assessee in not obtaining the report from an Accountant in prescribed form 3CEB. However, the Assessing Officer was not satisfied. In his view the report as required by section 92E is mandatory, accordingly he levied a penalty of Rs. 1 lakh each under section 271BA of the Act for both the years. Same contentions were reiterated before ld. CIT (A). Reliance was placed on various cases mentioned in the order of ld. CIT (A) at page 4.

3. After considering the submissions and perusing the material on record, the ld. CIT (A) was also in agreement with the finding of ld. Assessing Officer. Accordingly he confirmed the order of Assessing Officer. Now the assessee is in appeal here before the Tribunal for both the years.

4. Contentions raised before the lower authorities were reiterated by ld. A/R here before the Tribunal. Attention of the Bench was drawn on copy of written submissions placed on record.

5. On the other hand, the ld. D/R has supported the orders of lower authorities.

6. After considering the submissions and perusing the material on record, we find that assessee deserves to succeed in its appeal for both the years. It is seen that books of the account are audited under section 44AB for both the years. The auditor’s report has been obtained well in time and was enclosed along with the return of income for both the years respectively. The report in form 3CEB is also to be obtained as per provisions of section 92E and this report is supposed to be prepared by the same auditor who audited the books of account under section 44AB. The auditor has not advised to the assessee that this report is also required as per section 92E as it is clear from the fact that the same auditor has completed the audit work under section 44AB in time, but has not advised to obtain the report in form 3CEB as required. From this fact alone it is found that there was a bona fide in not obtaining the report in form 3CEB by the assessee. From the facts of the present case it is amply proved that even the auditors were not aware of section 92E by wh