TMI Blog2020 (9) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... profit of cloth business - HELD THAT:- There is no dispute with respect to disclosure of profit of footwear business and audit of books of accounts of that business. Assessee when confronted was found to have not disclosed profit from cloth business. In assessment proceedings assessee submitted computation of profit of cloth business, paid tax thereon and it appears submitted tax audit report of that business also. The tax audit report is dated prior to the due date of filing of the return for assessment year 2012 13. The notification issued by the Central Board Of Direct Taxes dated first may 2013 clearly states that the assessee was required to file audit report along with the income tax return form assessment year 2013 14 onwards. Assessee may have a view that prior to the date he was not required to file the audit report along with the return of income but obtain tax audit report prior to due date of filing of ROI.Therefore, it cannot be said that assessee did not have a reasonable cause for not filing tax audit report along with the return of income. Lower authorities are not justified in confirming the penalty u/s 271B - Decided in favour of assessee. - ITA No. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,026/-, making the total income from the cloth retail business to ₹ 6,00,000/- during the course of assessment proceedings. 3. That since the assessee had himself revised the Computation of Income, added the income of ₹ 3,09,974/- suo moto, and then further surrendered an amount of ₹ 2,90,026/- suo moto, there is no question of any concealment of income under the provisions of Section 271 (1) (c) of the Income Tax Act. 4. That it is apparent from the conduct of the appellant that there is no intention to evade legitimate tax liability, and further that demand as created in the assessment has also been deposited without going into litigation, against the assessment completed under Section 143(3) of the Act. Therefore, the allegations as made by the learned assessing officer is not tenable as per record and in law, and hence the penalty as imposed is required to be deleted. As such it may be held that the order u/s 271(l)(c) was bad in law. 5. That on the facts and circumstances of the case in law there was no deliberate intention to conceal the income addition to the income have been made on agreed basis without any incriminating evidence agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to his income within intention that no penalty would be initiated. He submitted that at the time of return filing, the accountant of the assessee could not file the income of his personal retail business of cloth by mistake. There is no deliberate intention to conceal an income. It was also submitted that assessee is an income tax payee since long and is very prompt and regular in furnishing of returns and payment of statutory liabilities. For this assessment year the assessee has not disputed the addition made in the assessment order and also deposited the tax. Therfore no penalty be levied. 6. Learned assessing officer rejected the contentions of the assessee and held that assessee has not disclosed income of cloth business at the time of filing original income tax return and had the case of the assessee not selected for scrutiny the income from cloth business would have not been offered by the assessee for taxation which would be a loss for revenue. Therefore the learned assessing officer held that the assessee has concealed/furnished inaccurate particulars of its income and is liable for imposition of penalty u/s 271 (1) (c) of the act and levied the penalty of ₹ 160 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accede to request of ld DR. However, on our request, the learned senior DR Ms Rakhi Vimal assisted the court. She vehemently opposed the admission of the additional ground of appeal. 11. We have carefully considered the rival contention and the additional grounds raised by the assessee. The additional grounds raised goes to the rout of the matter and are legal in nature. No fresh facts are required to be investigated. Therefore, in the interest of justice, same are admitted. 12. On the merits of the penalty both the parties are heard. At page number 10 of the paper book assessee has submitted a copy of the notice u/s 274 read with Section 271 of the Income Tax Act and submitted that none of the twin charges has been struck off. On looking at the assessment order also, we do not find that the learned assessing officer has raised any specific charge there. When the a. assessee was not confronted in the assessment order by recording a specific charge whether assessee has concealed income or has furnished inaccurate particulars of income, b. the notice issued u/s 274 of the act is also silent, c. but the learned assessing officer has levied the penalty on concealment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .04.2013, for Assessment Year 2013-14, the assessee was required to furnish the Tax Audit report u/s 44AB of the Income Tax Act, electronically along with ITR-4 only from A.Y 2013-14 onwards. Therefore, in view of the facts and instructions for filling of return of income for Assessment. Year 2012-13, the assessee was required to get his accounts audited before the specified date, obtain the report from the accountant before the specified date, but it was note required to file the audit report either physically with the assessing officer having jurisdiction over the assessee or to submit electronically, which have been made applicable only w.e.f. AY 2013-14. Therefore, it is submitted that the assessee has no default in compliance to the requirements of Section 44AB of the Income Tax Act, and hence no penalty is leviable under the provisions of Section 271 B of the Act on the assessee. However, during the assessment proceedings, the Assessing Officer, ignored such tax audit report filled, and passed an order under 27IB of the Income Tax ACL r; imposing a penalty for failure to get the accounts audited, which was bad in law. 3. That on the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that there is no failure on part of assessee. 17. The learned assessing officer rejected the contentions of the assessee for the reason that assessee has not disclosed income of cloth business at the time of filing of income tax return. He further held that the assessee has not declared the profit on sale of clothes, which shows that assessee, has even not prepared the accounts of the cloth business at the time of filing of return of income. Therefore learned AO noted the total turnover of the cloth business is ₹ 176,43,940, which exceeded the prescribed limit u/s 44 AB of the income tax act and therefore the assessee was required to get his account audited and furnish the audit report before the due date of filing of the return. Accordingly, penalty u/s 271B of the act of ₹ 88,220 was levied by order dated 24 September 2015. 18. Assessee challenged the same before the learned Commissioner Of Income Tax Appeal who also held that assessee had not got his accounts audited before the due date of filing of the return for assessment year 2012 13 as it was not submitted before the assessing officer by that time and therefore the penalty levied was confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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