TMI Blog2014 (2) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... such approval was obtained - The order itself is incompetent - An incompetent order is a nullity and the point as regards nullity can be taken at any stage – the order of penalty cannot be sustained – thus, the order set aside and the matter remitted back to the AO for passing an order under Section 271B after obtaining necessary approval – Decided in favour of Assessee. - GA 3223 of 2013, ITAT 176 of 2013, ITA 150 of 2009 - - - Dated:- 17-2-2014 - Girish Chandra Gupta And Sudip Ahluwalia,JJ. For the Appellant : Mr. R. K. Biswas, Advocate, Mr. P.K. Bhowmik, Advocate, Mr. Ranjan Sinha, Advocate. ORDER The Court :- Both these two appeals were taken up together because the common questions of law have arisen in these two a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sums exceeded ten lakh rupees. As a person carrying on a profession where gross receipts exceeded ten lakh rupees your accounts was required to be audited in terms of provision of sec 44AB of the Income Tax Act 61. Failure to have got your accounts audited and furnished the same before the due date of filing of return in the prescribed manner attracts penalty u/s 271B of the Income Tax Act 61. From the assessment order it appears that the total income earned by the assessee Sagar Dutta was Rs. 97,93,590/- out of which a sum of Rs. 74,16,000/- was on account of income from business or profession. After hearing the appellant, penalty was imposed under Section 271B. Aggrieved by the said order the appellant preferred an appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite approval. Since the order passed by the Income Tax Officer does not contain the requisite recital, it has to be held that no such approval was obtained. The order itself is incompetent. An incompetent order is a nullity and the point as regards nullity can be taken at any stage. It can even be taken at the stage of execution. Even if the orders imposing penalty were not set aside by us, which we propose to do, the order could not have been executed. Therefore, the third question is answered in the affirmative. Mr. Biswas, therefore, contended that the order imposing penalty is altogether bad and cannot be sustained. Mr. Bhowmik, learned Advocate submitted, in fairness the appellant should have raised this point at an earlier stage, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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