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2022 (3) TMI 882 - AT - Income TaxPenalty u/s 271B - applying the tax audit as per provisions of Section 44AB read with Section 44AD - HELD THAT:- Ground taken before the learned CIT(Appeals) reads as under: “4. That the AO has erred in law and facts in initiating proceedings u/s 271B of the act. The provisions of sec. 44AB of the act are applicable on business whereas the appellant is an investor and not a share trader. Even if, it is considered as business the loss was incurred in F&O segment where the net result is considered for turnover purpose and not the total transaction.” However, this ground of assessee’s appeal was not adverted by the learned CIT(Appeals). Ground no. 2 before the learned CIT(Appeals), the assessee had filed certain evidences, which the learned CIT(Appeals) did not admit. Before this Tribunal the assessee has filed an order by the Hon’ble Allahabad High Court in the matter of Sterla (India) Limited [2013 (9) TMI 1285 - ALLAHABAD HIGH COURT]. Therefore, looking to the order of the Hon’ble Allahabad High Court and the submissions of the assessee, the impugned order on the issue of addition made on account of buy back of shares is set aside and restored to the learned CIT(Appeals) for decision afresh. We find merit into the contention of the assessee on the ground raised against initiating proceedings u/s 271B and applying the tax audit as per provisions of Section 44AB read with Section 44AD of the Act. On both the issues the learned CIT(Appeals) would pass a speaking order after giving reasonable opportunity to the assessee. Assessee’s appeal is allowed for statistical purposes.
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