TMI Blog2019 (2) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... material gathered by the AO in the course of some survey in the case of third party though the said material may be relevant evidence for making the addition to the income of the assessee. Following the earlier decision of this Tribunal, the penalty levied U/s 271B of the Act is deleted. - Decided in favour of assessee. - ITA No. 754/JP/2016 - - - Dated:- 23-1-2019 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Manish Agarwal (CA) For the Revenue : Smt. Anuradha (JCIT) ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 29/06/2016 of ld. CIT(A), Ajmer arising from the penalty order passed U/s 271B of the Income Tax Act, 1961 (in short t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. Thus, the Assessing Officer added 10% of the said unaccounted sale in the assessment proceedings. Since the total turnover was considered by the Assessing Officer at ₹ 63,21,495/- accordingly as per the provisions of Section 44AB of the Act at the relevant point of time, the Assessing Officer held that the assessee has violated the condition of accounts be audited by an accountant before the specified date. The Assessing Officer subsequently initiated the proceedings U/s 271B of the act and levied the penalty of ₹ 31,607/- for violation of provisions of Section 44AB of the Act. The assessee challenged the action of the Assessing Officer before the ld. CIT(A) but could not succeed. 3. Before us, the AR of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 74/JP/2018. Thus, the ld AR has submitted that the addition made by the Assessing Officer on the basis of the unaccounted turnover would not attract the penalty provisions U/s 271B of the Act. 4. On the other hand, the ld DR has submitted that the assessee has admitted the addition made by the Assessing Officer and therefore, the unaccounted turnover was also accepted by the assessee which would be relevant for the purpose of Section 44AB of the Act. Since the assessee has not got its books of account audited, therefore, there is violation of provisions of Section 44AB of the Act and consequently the penalty U/s 271B of the Act was rightly levied by the Assessing Officer. She has relied upon the orders of the authorities below. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over of the assessee was only ₹ 24,80,995/- and consequently it was not necessary to get the books of account audited as required U/s 44AB of the Act. The A.O. has made the addition based on the survey conducted in the case of one Shri P.C. Vijayvargiya, however, no corresponding material in the possession of the assessee was found by the Assessing Officer to show that at the time of preparing the books of account, the assessee s turnover was exceeding the limit of ₹ 60.00 lacs as provided U/s 44AB of the Act. Hence, the requirement of audit of the books of account as per Section 44AB of the Act is only in the case when the assessee on its own declared the turnover of more than the minimum amount prescribed U/s 44AB of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to maintain books of accounts and get them audited. Corresponding provisions are provided in section 44AA(2)(iv) of the Act as well. In the instant case, the assessee has not made any such claim in his return of income. Further, the Revenue has accepted the claim of the assessee as being eligible for such presumptive taxation where the assessee has reported a net profit of 8.09% on total reported turnover of ₹ 48,98,269. In such a situation, having not disturbed the said position under section 44AD, it cannot be said that the assessee has failed to get his books of accounted where undisclosed business receipts of ₹ 43,34,064/- are brought to tax during the course of assessment proceedings and whereby the prescribed turnove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. Merely because the appellant accepted the additional sates for the purpose of assessment of the relevant year on the basis of entries in the seized documents, the same would not constitute accounts of the appellant maintained in the regular course of business and on that basis alone liability cannot be fastened on the assessee by holding him to have committed the default. Furthermore, the word accounts has not been defined under the IT Act However, under s. 34 of the Indian Evidence Act, 1872, sanctity is attached to the books of accounts, if the books are indeed account books , i.e., in original if they show on their face, that they are kept in the 'regular course of business'. So, the accounts under s. 34 of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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