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TMI Blog2020 (9) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Rs. 160,019/- which is bad in law. 2. That on the facts and circumstances of the case, the assessee has submitted replies during the assessment proceedings before the AO, vide letter dated 23.06.2014 & 10.11.2014, wherein it was stated that the cash deposited in Central Bank of India (Account No. 30434545778) & ICICI Bank (Account No. - 036901002987, & 028805004433) represents the sale proceeds of the retail cloth business. In support of his contentions, the assessee filed the copy of the Audited Balance Sheet, Profit and Loss Account, and Tax Audit Report dated 25.09.2012, u/s 44AB of the Income Tax Act of the cloth business. He has also stated that in the cloth retail business, he has earned a net profit of Rs. 3,09,974/-for AY 2012-13. The accountant of the assessee, however, could not incorporate the income of his retail cloth business amounting to Rs. 3,09,974/-, at the time of filling of Income Tax Return of the assessee by mistake. Accordingly, the assessee, during the course of assessment proceedings, revised the computation of income and added the income of Rs. 3,09,974/- suo moto, before the same was pointed out by the Assessing Officer. The Assessing Officer, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness carried on by the assessee. It was submitted that assessee has earned net profit of Rs. 309,974/- for that business. Assessee submitted that same could not be disclosed in the income tax return. However as the return could not be revised because of the expiry of time limit, assessee submitted a revised computation of total income and paid tax on it. It was rejected by the learned assessing officer. As the computation of income of cloth business was rejected, learned assessing officer also rejected the profit shown by the assessee from cloth business of Rs. 309,974 and estimated income from it at Rs. 6 lakhs. This was also made to cover up the difference in the gross profit rate. To this assessee agreed and did not file any appeal. At the time of framing the assessment order assessing officer also initiated the penalty proceedings u/s 271 (1) ( C ) and u/s 271B of the act. 5. As the assessment proceedings were complete, the learned assessing officer issued show cause notice on 24 July 2015 u/s 274 of the act which was replied on 26th of August 2015. Assessee submitted that he has offered the income of cloth business as per the audited accounts dated 25/9/2012. However to buy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 271 (1) ( C ) of the act and as such the penalty order is illegal and without jurisdiction 2. That in absence of recording of specific satisfaction of levying specific charge is to concealment of income or furnishing of inaccurate particulars of income, notice u/s 274 and the consequential order is invalid and void ab initio. 3. That the assessing officer having failed to specify any charge in the assessment order or in the penalty order, the penalty order is in total disregard to mandate of Section 271 (1) (c ) and settled legal principles 9. The learned authorised representative submitted that the grounds raised are purely of legal and consequential nature and arise from penalty order which is subject matter of appeal and no new fact or evidence is required in relation to this ground and accordingly the abovesaid ground may kindly be admitted in the interest of justice. He further relied on the decision of the honourable Supreme Court in case of NTPC Ltd 229 ITR 363. 10. On the given date of hearing the learned departmental representative sought adjournment. Looking at the smallness of issue, also being covered by decision of Honourable Jurisdictional high court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the order of the Commissioner Of Income Tax (Appeals) - 12, New Delhi dated 22 December 2016 wherein penalty levied by the learned assessing officer u/s 271B of The Income Tax Act ,1961 of Rs. 88,220/- is upheld.:- "1. That on the facts and in the circumstances of the case & in Law, the Ld. CIT Appeal had erred in rejecting the appeal filed against the order passed by the Assessing Officer, u/s 271B by wrongly imposing penalty of Rs. 88,220/-, which is bad in law. 2. That on the facts and circumstances of the case, the assessee was required to get his cloth business accounts audited u/s 44AB of the Income Tax Act, & to obtain the Tax Audit Report for A.Y 2012-13 before the specified date i.e 30.09.2012 for filing of the return which was obtained by the assessee on 25.09.2012, within the prescribed time schedule. It was not required to file Tax Audit report, either physically or submit electronically with the assessing officer having jurisdiction & therefore there was no default in compliance to the requirements u/s 44 AB of the Income Tax Act. It is also submitted that CBDT vide Notification No. 34/2013/F.No. 142/5/2013-TPL dated 01.05.2013, amended Rule 12, w.e.f 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act before filing of the return of income. 16. Assessee submitted its reply on 26th of August 2015 stating that his accounts for retail business of cloth with turnover of Rs. 176,43,940 with the net profit of Rs. 309,974 is audited u/s 44AB as per tax audit report dated 25th of September 2012. He submitted that the books of accounts were audited prior to the due date of filing of return u/s 139 of the income tax act. However, same were not filed with return of income, as the income of cloth business itself was not shown in return of income. He further submitted that as per the relevant rule 12 (2) of the IT Rules, applicable to assessment year 2012 - 13, the copy of audited accounts of the report of audit were not required to be attached with the return of income. The copy of audited trading and profit and loss account and balance sheet along with the tax report dated 25 September 2012 submitted by the assessee to the office of the learned assessing officer during the course of assessment proceedings. He therefore submitted that for that AY, there was no provision to submit these documents along with the income tax return. In view of this, it was submitted that there is no failur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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