Case Law Details

Case Name : Narendra A Sheth Vs. ITO (ITAT Mumbai)
Appeal Number : ITA No. 3736/Mum/2013
Date of Judgement/Order : 26/05/2017
Related Assessment Year : 2008- 09
Courts : All ITAT (4329) ITAT Mumbai (1439)

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In reply to the show-cause notice for initiation of penalty, the assessee has replied that he is a Sr. Citizen; his accounts are looked after by Accountant. The accountant of the assessee is not qualified person. The assessee was under bona fide belief that accounts are not required to be issued under section 44AB of the Act. The assessee specifically pleaded in the reply that the Guidance note, ‘Note of Tax Audit under section 44AB’ issued by ICAI that, if the turnover of Future & Option defined as aggregate of favorable and unfavorable transaction exceed Rs. 40,00,000 than the assessee is liable to get his account audited. As per our view the assessee has sufficiently explained the circumstances, as per the provisions of section 273B of the Income Tax Act. Considering the reply of the assessee the penalty levied by assessing officer under section 271B for Rs. 40,694 is deleted.

Full Text of the ITAT Order is as follows:-

This appeal by assessee under section 253 of the Income Tax Act (‘the Act’) is directed against the order of learned. Commissioner (Appeals)-23, Mumbai dated 4-2-2013 for assessment year (AY)-2008-09. Though, the assessee has raised two alternative grounds of appeal. However, as per our considered view, the only substantial ground of appeal is if the learned. Commissioner (Appeals) erred in confirming the penalty levied under section 271B or trading in derivatives transaction and/or the assessee is not liable to get the books of accounts audited under section 44AB of the Act.

2. Brief facts of the case are that during the relevant assessment year, the assessee filed return of income on 29-3-2010 declaring total income of Rs. 32,61,150. During the assessment proceeding, the assessing officer (AO) noticed that the total turnover of the assessee was at Rs. 87,38,784 which exceed the turnover of Rs. 40,00,000 limit as prescribed under section 44AB. Thus, the assessing officer initiated the penalty under section 271B vide order-sheet dated 19-11-2010. Notice under section 274 read with section 271 dated 24-12-2010 was served upon the assessee. In response to the order-sheet dated 19-11-2010, the assessee filed his reply dated 30-11-2010 and contended that as per the “Guidance Note of Tax Audit under section 44AB of the Act” issued by Institute of Chartered Accountants (ICAI), if turnover of Future & Options defined as aggregate of favorable and unfavorable transaction exceed Rs. 40,00,000, then only the assessee is liable to get his account audited. The assessee further contended that he is a Sr. Citizen and earning income from Future & Option activities managed by his broker. His accounts are maintained by a person who is not a qualified accountant and is unaware of Income Tax Provisions. The assessee was under bonafide belief that his accounts are not required to get audited under section 44AB. The contention of assessee was not accepted by assessing officer holding that the Guidance ‘note of ICAI’ relied by assessee is not mentioned anywhere in the Income Tax Act. Though, the definition of turnover is not defined in the Act but turnover as mentioned in section 44AB implies gross receipt which included both loss and gains. The turnover of the assessee was arrived at Rs. 87,38,784. Thus, The assessing officer levied the penalty @ .5% of the total turnover. The assessing officer levied the minimum penalty as prescribed under section 271B and works out to Rs. 40,694. On appeal before the learned Commissioner (Appeals), the penalty was sustained. Aggrieved by the order of learned. Commissioner (Appeals), the assessee has filed the present appeal before us.

3. This appeal was fixed on 20-4-2017; none appeared on behalf of assessee despite repeated calls and pass over. We have noticed that assessee has not appeared throughout the proceeding. The authority letter of S/Shri P.N. Saha, A.H. Saha and Dalpat Saha is on record. The notice of hearing of appeal for 20-4-2017 was also duly served on the assessee by RPAD. The AD Card bearing acknowledgment of receipt is also available on record. We left no option except to hear the learned. Department Representative for the Revenue and to proceed on the basis of material available on record. The learned. Department Representative for the Revenue supported the order of authorities below and would argue that in reply to the show-cause notice, the assessee has not given any plausible and convincing explanation. The assessee has taken lame excuse. The lower authorities considered the reply filed by assessee and after affording full opportunity, the penalty was levied. The learned. Department Representative for the Revenue prayed for dismissal of appeal.

4. We have considered the contention of learned. Department Representative for the Revenue and further gone through the orders of authorities below. In reply to the show-cause notice for levy of penalty under section 271B, the assessee has taken the plea that he is a Sr. Citizen, his accounts are looked after by Accountant, who is not qualified person, he was under bona fide belief that accounts are not required to be issued under section 44AB of the Act. It was further contended that Guidance ‘Note of Tax Audit under section 44AB’ issued by ICAI that if the turnover of Future & Option defined as aggregate of favorable and unfavorable transaction exceed Rs. 40,00,000 than the assessee is liable to get his account audited. The contention of assessee was not accepted by assessing officer holding that the Guidance ‘Note of ICAI’ on Future & Option activities have no override effect to the provisions of Income Tax Act. The learned. Commissioner (Appeals) while considering the contention of the assessee observed that section 44AB became operative from ay 1985-86. The contention of the assessee is that the person who was maintaining the accounts was not a qualified person, do not carry any conviction. The learned. Commissioner (Appeals) further concluded that the reply furnished by assessee is not sufficient and justified for his omission for not auditing his account. The reply is neither plausible nor convincing. The learned. Commissioner (Appeals) further concluded that the assessee being a Sr. Citizen and engaged in the business of derivative, Future & Option with a tremendous courage and dynamism and on the other hand, he is taking such excuse which is not acceptable. We have seen that the order of learned. Commissioner (Appeals) is reasoned one and does not suffer from any infirmity or illegality, which requires our interference. We have seen that in reply to the show-cause notice for initiation of penalty, the assessee has replied that he is a Sr. Citizen; his accounts are looked after by Accountant. The accountant of the assessee is not qualified person. The assessee was under bona fide belief that accounts are not required to be issued under section 44AB of the Act. The assessee specifically pleaded in the reply that the Guidance note, ‘Note of Tax Audit under section 44AB’ issued by ICAI that, if the turnover of Future & Option defined as aggregate of favorable and unfavorable transaction exceed Rs. 40,00,000 than the assessee is liable to get his account audited. As per our view the assessee has sufficiently explained the circumstances, as per the provisions of section 273B of the Income Tax Act. Considering the reply of the assessee the penalty levied by assessing officer under section 271B for Rs. 40,694 is deleted.

5. In the result, the appeal of the assessee is allowed.

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Category : Income Tax (25320)
Type : Judiciary (10096)
Tags : ITAT Judgments (4509) Section 271B (21) section 44AB (127)

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