TMI Blog2022 (9) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, in absence of the assessee causing appearance before the Revenue Authorities, either at this stage of assessment proceedings nor at the stage of penalty proceedings u/s 271B and neither at the appellate proceedings before Ld. CIT(Appeals) (It has been observed that the matter has been fixed twice before CIT(Appeals), once against the original penalty order and then subsequently again pursuant to directions of orders of ITAT and on both occasions, the assessee did not cause appearance before CIT(Appeals), and therefore, the Department did not get any opportunity to ascertain the true nature of transaction carried out by the assessee and also whether there was requirement to maintain books of accounts. Accordingly, by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of delay in filing the appeal. The reason cited by the assessee was that the order passed by the Ld. CIT(Appeals) sought to be appealed against, was handed over to the accountant of the assessee so that the same may be handed to the CA of the assessee for purpose of filing of appeal before ITAT. Meanwhile, the assessee during the intervening period got preoccupied with the illness of his mother. Subsequently, the assessee came to know that his accountant had misplaced the appeal papers and accordingly, the appeal could not be filed in time. The counsel for the assessee submitted that it is for the foregoing reasons, owing to the mistake of the accountant of the assessee, that the appeal could not be filed within time. Considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,50,000/- u/s 271B of the Act for the reason that the turnover of the assessee from business of commodity exchange was Rs. 477 crores and the assessee failed to get his books audited as provided in section 44AB of the Act. The Ld. CIT(Appeals) dismissed the assessee s appeal (which was passed ex-parte on account on non-appearance on behalf of the assessee). Thereafter, the ITAT vide order dated 05-04-2018 in ITA number 3472 and 3488/ Ahd/ 2016 restored the matter to the file of Ld. CIT(Appeals) to hear the matter on merits afresh after giving reasonable opportunity of hearing to the assessee. In remand proceedings before Ld. CIT(Appeals), despite several notices, again none appeared for the assessee, and accordingly, Ld. CIT(Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act as well. The Ld. Counsel for the assessee drew our attention to page 74 of Paper-Book in the case of Bisauli Tractors 299 ITR 219 (All), in which it was held that if a person has not maintained any books of accounts, the question of audit doe not arise. Hence, no penalty can be imposed u/s 271B of the Act. 6. In response, the Ld. DR submitted that it is evidently not clear whether the assessee has earned capital gains or engaged in a business transaction. It is further not clear whether the assessee has entered into a speculative or non-speculative transaction on the commodity exchange. Accordingly, the issue may be restored to the file of the Ld. Assessing Officer to ascertain the nature of transaction and to decide whether ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce before the Revenue Authorities, either at this stage of assessment proceedings nor at the stage of penalty proceedings under section 271B of the Act and neither at the appellate proceedings before Ld. CIT(Appeals) (It has been observed that the matter has been fixed twice before Ld. CIT(Appeals), once against the original penalty order and then subsequently again pursuant to directions of orders of ITAT vide order dated 05-04-2018 and on both occasions, the assessee did not cause appearance before Ld. CIT(Appeals), and therefore, the Department did not get any opportunity to ascertain the true nature of transaction carried out by the assessee and also whether there was requirement to maintain books of accounts. Accordingly, by way of fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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