TMI Blog2010 (7) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... uthiala v. CIT (1971 -TMI - 6273 - SUPREME Court) wherein it has been held that there was no presumption as to the tax – By the plain reading of the provision of the Section 44AB – It was held that the assessee, is not in dispute that the assessee had not got tax audit report in respect of share trading business having turnover of Rs. 43,49,986 - levy of penalty confirmed. - IT APPEAL NO. 1408 (DELHI) OF 2010 C.O. NO. 132 (DELHI) OF 2010 - - - Dated:- 30-7-2010 - ORDER K.D. Ranjan, Accountant Member This appeal by the Revenue and the cross objection by the assessee for the assessment year 2004 05 arise out of the order of the learned Commissioner of Income-tax (Appeals)-XXIII,New Delhi. 2. The grounds of appeal raised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cent, of the total turnover of both businesses subject to maximum of Rs. 1,00,000. 4. Before the learned Commissioner of Income-tax (Appeals) it was submitted that under bona fide mistake on the part of the assessee due to her ignorance of law the books of account of share trading business were not audited. The assessee was filing her return of income regularly and was a law abiding citizen. No default had been committed by her in the past or in future. Therefore, penalty should not have been imposed. Alternatively it was argued that if there was any default under section 44AB it was only related to share trading business and therefore, penalty was to be imposed with reference to the turnover of share business. The learned Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding business. 5. Aggrieved by the order of the learned Commissioner of Income-tax (Appeals) the Revenue is in appeal against deleting the penalty in respect of turnover of other business and the assessee is aggrieved with the order of the learned Commissioner of Income-tax (Appeals) not deleting the entire penalty. 6. Before us the learned senior Departmental representative submitted that for the purpose of levy of penalty the turnover of both the businesses, i.e., export unit and share trading business has to be considered. The expression turnover used in section 44AB means the total turnover of the business carried on by the assessee. On the other hand, the learned senior Departmental representative submitted that it was a bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date. Thus the provisions of section 44AB mandate that where the total sales or turnover or gross receipts of the business carried on by the assessee exceeds the limits prescribed in the section the assessee is duty bound to get his accounts audited from the accountant specified in section 288 of the Income-tax Act, 1961. This follows that in a case where an assessee carries on more than one business and the turnover of all the businesses taken together is more than the specified limits he has to get the accounts of all the businesses audited. Failure on the part of the assessee would make him liable to penalty under section 271B of the Act. However, nothing has been provided in law or rules where the assessee gets accounts of one business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts which have been audited. In other words penalty cannot be imposed in respect of the business whose books of account have been audited and filed on or before the due date specified in the Act. 9. In the case of the assessee, it is not in dispute that the assessee had not got tax audit report in respect of share trading business having turnover of Rs. 43,49,986. The Assessing Officer had imposed penalty on the total turnover of both the businesses which includes gross turnover of export business at Rs. 15,53,52,253 and share trading business at Rs. 43,49,986. The gross turnover of both the businesses taken together is more than Rs. 40 lakhs, Therefore, the assessee was required to get the accounts audited in respect of both the busi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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