TMI Blog2018 (1) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment in the hands of AOP has been made then the assessment of the same income in the individual capacity tantamount to double assessment of the same income, which is impermissible in the eyes of law. Thus the Bench direct to delete the penalty levied U/s 271B of the Act. - Decided in favour of assessee - ITA No. 424/JP/2017 - - - Dated:- 11-1-2018 - SHRI BHAGCHAND, ACCOUNTANT MEMBER For The Assessee : Shri G.C. Jain (Adv). For The Revenue : Smt. Poonam Roy (DCIT) ORDER PER: BHAGCHAND, A.M. This is an appeal filed by the assessee emanates from the order of the ld. CIT(A), Alwar dated 02/03/2017 for the A.Y. 2009-10. The only issue involved in this appeal is against sustaining the penalty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions made by the appellant and come to the conclusion that the turnover of liquor business of his part should have been declared in his return of income. Therefore, A.O. is justified in treating the assessee as defaulter for violating the provision of Section 44AB of the Act. Therefore, A.O. is also justified in imposing the penalty of ₹ 54,710/- U/s 271B of the Act. Accordingly, the penalty is sustained and appellant s ground of appeal is dismissed. 4. Now the assessee is in appeal before the ITAT. While pleading on behalf of the assessee, the ld AR has submitted as under: 1. The facts of the case are that the assessee filed his return for the a. year 2009-10 on 16-3-2010 declaring an income of ₹ 127900/- plus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso be treated as income/revenue and expenditure of the AOP. Further on page 8 of the agreement (Paper book) it is stated that the above parties 1 to 103 have to do the business in association and will be carried on in the name and style of M/s Umraosingh Party That the TCS in the name of member individually or AOP will be treated as the TCS of M/s Umraosingh Party; That all records will be maintained at Flead Office situated at UDAIPUR, (clause 16) The work has been taken in the name of M/s umraosingh Party Kota Bundi group (Raj.) which will be treated as firm M/s Umraosingh Party Kota Bundi group (Raj.) and will be binding to all the members (clause 17). 3. All these facts were brought to the notice of the learned ITO and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a/c amounted to ₹ 13503922/-. 4. The ld. ITO estimated the profit at the rate of 12% but the same was reduced to 2% by the ld. CIT (A), and sustained the addition on of ₹ 211186/-. Further he deleted the entire addition of ₹ 912000/- made by the AO u/s 69B of the IT Act. The CIT (A) however, confirmed the ITO's order on the point of assessment in the hands of the assessee on the ground that the license was in his name and was not transferred to A.O. P. An appeal was filed by the department on the ground of net profit rate and deletion of addition u/s 69B. On the other hand cross objections was filed against the CIT's order confirming the assessment of liquor business in Ind. hands. The departmental appeal wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in the case of Baru Ram Milkhi Ram vs ITO (1988) 32 TTJ 164 (Delhi) Reliance is also placed on CIT Vs A.U. Chandrasekharan (1998) 229 ITR 406 (Mad) and Murlidhar Jhanwar Purna Ginning and pressing factory (SC) following decision in the case of Kanpur coal syndicate (1964) 53 ITR 225 (SC). In view of the aforesaid facts and circumstances of the case, the asstt. in the case of assessee in respect of liquor Business was not justified. As stated above, after initiating proceedings, the ld. ITO imposed penalty of ₹ 54711/- i.e. 1/2% of the total turnover of ₹ 10942255/- u/s 271B of the Act for noncompliance of the provisions of section 44AB. As submitted a consolidated audit of all the shops to whom license was granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P M/s Umrao Singh Party (Kota Bundi) group, Udaipur. The consolidated audit report was prepared after taking into account all relevant factors of the assessee as well as of other license holders. The consolidated report in the name of AOP M/s Umrao Singh and party of which the assessee is one of the member. Once the assessment in the hands of AOP has been made then the assessment of the same income in the individual capacity tantamount to double assessment of the same income, which is impermissible in the eyes of law. After considering the facts and circumstances of the case as well as various case laws as mentioned in the submissions of the ld. AR of the assessee, the Bench direct to delete the penalty levied U/s 271B of the Act. 7. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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