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2023 (11) TMI 1139 - ITAT VISAKHAPATNAMPenalty u/s 271B - not getting the books of account audited u/s 44AB - as alleged cash deposits made exceeded the threshold limit as per section 44AB - CIT(A) held that since the assessee failed to get his accounts audited u/s 44AB treated the cash deposits as turnover of the assessee, though it was affected on behalf of the Principal and since the assessee was getting commission and discounts on such sales - HELD THAT:- Principal i.e. Bharti Airtel Ltd. is liable to deduct tax at source. The service provider is responsible for collection of moneys from the post paid subscribers of Airtel, on behalf of Airtel in accordance with the terms of the Agreement and the Airtel shall pay the commission / incentives. The agent is liable to pay tax only on the commission / incentive received. AO levied penalty on the assessee as the cash deposit during the F.Y. 2016-17 exceeded the threshold limit u/s 44AB of the Act, treating the same as turnover of the assessee, though he is only an agent who provided services for the Principal. The only contention of the assessee is only an agent / service provider and he was under bonafide belief that he was not liable to get the books of accounts audited as the commission income was below the threshold limit and thus the assessee’s case is covered u/s 273B. On similar set of facts, the decision was taken in favour of the assessee by the coordinate bench of the Tribunal in the case of Anunoy Mukherjee [2023 (2) TMI 1221 - ITAT KOLKATA] as held assessee is receiving commission income and tax is deducted at source by the Telecom company treating the cash deposits as amount collected on behalf of the Telecom company from various customers and deposited in the bank account and commission on such deposits is given by the Telecom company. The reasons cited by assessee prima facie found to be reasonable because the assessee was under bonafide belief that he was not liable to get the books of accounts audited as the commission income was below the threshold limit and this was the first year of the business venture taken up by the assessee and thus assessee’s case is covered u/s 273B. Thus we hold that the provisions of section 273B of the Act applies to the case of the assessee since the assessee has a reasonable cause for not getting the books of account audited and the penalty shall not be imposable on the assessee u/s 271B of the Act - Decided in favour of assessee..
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