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TMI Blog2016 (9) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... see has taken three grounds of appeal. However, the effective ground is regarding imposition of penalty u/s 271B of Rs. 1 lakh, which is upheld by the ld. CIT(A). I.T.A. No. 84/Ind/2016 Assessment Year: 2010-11 3. Briefly stated, the facts of the case are that the assessee has filed his return of income on 15.11.2010 declaring total income at Rs. 4,98,491/-. The same was assessed vide order u/s 143(3) dated 30.01.2013 and total income was determined at Rs. 7,45,690/-. During the course of assessment proceedings, the AO noticed that the assessee is not maintaining any books of accounts, though the gross turnover of the assessee was noticed at Rs. 2,39,52,974/-, whereas the assessee has shown the gross receipt at Rs. 5,90,400/- in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udited u/s 44AB, whereas the AO has clearly brought out that the assessee personally appeared in the income tax office in the period during which the books of accounts had to be audited for assessment year 2010-11. Accordingly, penalty levied by the AO was confirmed by observing that the case laws cited by the assessee are not applicable to the facts of the case. 6. Before us, Ld. Counsel of the assessee submitted that the assessee had voluntarily filed the return of income showing total income of Rs. 4,98,491/-, which was assessed at Rs. 7,45,690/- by applying net profit rate @ 3.5 %. It was due to the reason that the assessee's health condition was critical during the year and he was admitted to the hospital for the medical treatment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, would tantamount to penalize twice for a single failure due to circumstances beyond his control. The ld. Authorized Representative of the assessee placed reliance on the following decisions :- (i) Star Agencies vs. ITO, I.T.A.T., Cochin Bench, (2004) 23 CCH 0646 (Coch Trib.),(2006) 5 SOT 0336. (ii) Shri Azad Kumar Jain vs. ITO, Agra Bench I.T.A.No. 43/Agr/2010. (iii) Sibonarayan Patro & Bros. vs. ITO, I.T.A.T., Cuttack Bench, (1996) 54 TTJ 0644: (1998) 67 ITD 0001. (iv) ITO vs. Gayatri Coal Supply Co., I.T.A.T. Patna Bench (Third Member), (1997) 63 ITD 0237. (v) CIT vs. Ashoka Dairy, (2006) 200 CTR 0211 ( P&H ) (vi) CIT vs. Anand Kumar & Co., (2005) 196 CTR 0225, (2006) ITR 0111. (All) (vii) Surajmal Parsuram Todi vs. CIT, (1996) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from 28.02.2009 to 14.03.2010. Thus, the health of the assessee for the period from February, 2009, to March, 2010, relevant to assessment year under reference was not well and he was regularly under medication and hospitalized at regular intervals. It is also noticed from the paper book pages 19 & 20 that this fact of the illness of the assessee was also communicated in a letter dated 04.04.2009 addressed to Chief Commissioner of Income Tax citing reasons of his illness regarding getting the refund processed speedily. Similar communication was also made to ITO Ward 2(1), Indore (which is placed at paper book page 21) for giving the effect of the appellate order in which the assessee has cited that he was suffering from chronic disease (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Authorized Representative of the assessee in the case of CIT vs. Anand Kumar & Co., (2006) 281 ITR 0111. (All), Surajmal Parsuram Todi vs. CIT, (1996) 222 ITR 0691 (Gau) and others also support his case that no penalty is leviable, as there is reasonable cause, and there is no deliberate or intentional inaction on the part of the assessee to comply with the requirement of Section 44AB before the specified date. The documentary evidences filed by the assessee have not been negated by the Revenue Authorities by producing any contrary evidence. In view of these facts and circumstances of the present case, we are of the considered opinion that the assessee has established reasonable cause for non-getting the audit report u/s 44AB due to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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