TMI Blog2020 (2) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated by the Ld. Counsel for the assessee is verified at the end of the Ld. A.O which is to be calculated on the basis of Guidance note issued by ICAI for tax audit u/s 44AB of the Act, the question that whether the assessee was liable to get books of accounts audited u/s 44AB of the Act needs to be taken by Ld. A.O thereafter. Set aside all the issues raised in this appeal to Ld. A.O, to carry out necessary verification with the assistance of assessee who would file all necessary details in support of its contention that the turnover is only as held by Ld. CIT(A). However the Ld. A.O is directed to compute the turnover as per the guidance note on Section 44AB of the Act issued by ICAI as well as the settled judicial precedence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. On the basis of information available on record Ld. A.O on observed that the assessee is engaged in trading in equity shares in three modes viz Future and Options, Intra-day transactions and delivery based transaction. Ld. A.O on examination of books of accounts noticed that total sales of the assessee in share transaction is ₹ 22,52,74,187/- but assessee failed to obtain Audit Report u/s 44AB of the Act and for this failure assessee is liable to be penalized u/s 271B of the Act. However, Ld. A.O made no addition to the income shown by the assessee as there was loss in share transactions and thus assessed income at ₹ 45,320/-. 4. Subsequently penalty proceedings u/s 271B of the Act were initiated and penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceedings, the appellant had mainly contended that turnover in the cases of delivery based sales, future options and intraday transactions are supposed to be different from normal business turnover. But, The Income Tax Act, 1961 does not prescribe any different definition of turnover for above mentioned transactions. A detailed written submission has also been filed before the assessing officer. However, during the course of appeal proceedings, the appellant has submitted that penalty u/s 271B of the Income Tax Act, 1961 is not leviable in this case for being no accounts case . The appellant has also relied upon a number of case laws, After considering the totality of the facts and circumstances of the case, the contention of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is not defined in the Act and meaning is to be borrowed from the definition provided in the provisions of sale of goods Act u/s 6(3) of the said Act. It was further submitted by the Ld. Counsel for the assessee that since the turnover is less than the one prescribed u/s 44AB of the Act the assessee is not required to get the books of accounts audited. It was also asserted that no books of accounts were kept but Ld. A.O has mentioned to have checked on test check basis. Reliance placed on the following decisions; (i) I.T.A.T. Pune Bench B in the case of Banwari Sitaram Pasari HUF v/s ACIT IT Appeal No.1489 (Pune) of 2011 (22.11.2012) (ii) I.T.A.T. Mumbai Bench in the case of Babulal Enterprises (IT Appeal No.6031 (Mum) of 1996 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O has referred to the books of accounts maintained by the assessee which have been examined on test check basis and turnover is computed at ₹ 22,52,74,187/-. However the assessee has stated that no books of accounts were maintained by him and since he incurred the loss during the year, the share transactions were not disclosed. When the matter came up before Ld. CIT(A) in the submissions assessee submitted that turnover during the year is ₹ 51,78,174/- which comprises of the following; Nature of transactions Basis of Turnover Amount (Rs.) Delivery based Sales Sales Value 26,97,721/- Future and Opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the logical end from the material available on record to examine the justification of levy of penalty u/s 271B of the Act will be little early. In the assessment order Ld. A.O has not given correct finding and is mentioning about the books of accounts which the assessee has never maintained. The judgment referred and relied by the assessee will not help at this stage. Once the turnover as stated by the Ld. Counsel for the assessee is verified at the end of the Ld. A.O which is to be calculated on the basis of Guidance note issued by ICAI for tax audit u/s 44AB of the Act, the question that whether the assessee was liable to get books of accounts audited u/s 44AB of the Act needs to be taken by Ld. A.O thereafter. 12. We accordingly i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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