TMI Blog2015 (10) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of 'purchases', as stated by the A.O. with reference to the Sales Tax Act, for the purpose of invoking s. 44AB, is without merit. This is for the simple reason that the word 'turnover' stands clearly and separately defined under the sales-tax legislation to include purchases as well. Even following the legal principles on the basis of the legal maxims ejusdem generis and noscitus A Sociis would operate to exclude 'purchases' from forming part of the qualifying criterion. Rather, a provision, for the purpose of levy of penalty, is to be even otherwise strictly construed. It is perhaps for the reason of the same not finding approval of the ld. CIT(A) that she chose not to advert thereto in the impugned order. As explained by the apex c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director and Shri Atul B. Gandhi, employee, we are satisfied that this is a case of a honest and bona fide delay and, therefore, needs to be condoned to advance the cause of substantial justice. The delay was, accordingly, condoned and the hearing proceeded with, admitting the assessee's appeal. 3. The brief facts of the case are that the assessee-company is in the business as builders and developers, following the project completion method for recognizing and returning income. In the course of assessment proceedings, it was observed by the Assessing Officer (A.O.) that while it had filed audit report under the Companies Act, no separate report in Form 3CA, as required u/s.44AB of the Act, had been filed. This, in his view, was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, had clarified that the receipt from customers in case of a Builder following the project completion method would stand to form part of the qualifying criteria. The argument that the same was in a nature of an advance in such a case, i.e., where the project completion method is followed, was found by the tribunal to be to no avail. The provision of section 44AB stood thus attracted in the facts and circumstances of the case and, accordingly, penalty u/s.271B stood, in view of the admitted default, rightly imposed. Aggrieved, the assessee is in second appeal. 4. We have heard the parties, and perused the material on record, giving our careful consideration to the matter. 4.1 We find considerable merit in the Revenue's case. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than one way; the matter in fact having travelled to the tribunal in the case of B.K. Jhala Associates (supra) and Gopal Krishan Builders (supra), both at the instance of the Revenue, so that the assessee had succeeded at the first appellate stage. The matter, accordingly, cannot be considered to be without an element of contentiousness associated therewith, so that it is liable to be considered as giving rise to a debatable question, constituting a reasonable cause within the meaning of section 273B of the Act, saving penalty. We say so as the words 'sales', 'turnover' as well as 'gross receipts' give rise to connotation of receipts of revenue nature, forming part of the income statement for the relevant yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) to have, in confirming the penalty, based it on a different cause; the default being the same, it does amount to a different view being adopted on the same set of facts, confirming the view, if one was required, that the matter is liable to be considered in more ways than one. The inclusion of 'purchases', as stated by the A.O. with reference to the decision by the apex court in the case of George Oks Pvt. Ltd. under the Sales Tax Act, for the purpose of invoking s. 44AB, is without merit. This is for the simple reason that the word 'turnover' stands clearly and separately defined under the sales-tax legislation to include purchases as well. Even following the legal principles on the basis of the legal maxims ejusdem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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