9911796707
TMI Blog2024 (9) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... 59,000/- during the demonetization period in his bank account maintained with State Bank of India, Greater Kailash, New Delhi. During the assessment proceedings, the Assessing Officer observed that assessee derives income from running of a Mother Dairy Booth, Greater Kailash, New Delhi. After verification of the cash deposits made by the assessee that cash deposited in the banks during the demonetization period was out of daily sale of milk and other products from the Booth. However, the Assessing Officer observed that the gross turnover of the assessee for the year was Rs. 1,70,47,140/- which is more than 1 Crore, the provisions of section 44AB are attracted in this case. Accordingly, penalty the proceedings u/s 271B was a failure to get a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e books of account audited, until and unless such books are maintained. So, the question of levying penalty for not getting the books audited must not be considered in isolation. 5. That it is apparent and transpired from the record that no prior approval /sanction has been obtained from Jt. CIT before passing a penalty order u/s 271B. 6. The appellant has suffered on account of his illiteracy of financial and tax laws. That, therefore, appellant could not understand the implications regarding his financial transactions and unable to comply with provisions. 7. That it is well known and standard practice of the income tax department (supported by CBDT Circulars) the Department Officers are not supposed to act as Executive or Judicial O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant relied on the case Laws as follows:- 1. Ved Singh Vs ITO Charkhi Dadri (ITAT, New Delhi) dt. 15th Jan 2024 ((2024) 159 Taxmann.com 1568) (Page 29-32) 2. Sh Nikki Tyagi Vs. Income Tax Officer (ITA No. 5508/Del /2019 dt 30th June 2022) (ITAT, New Delhi). (Page 33-36) 3. Mohd Javed Vs Income Tax Officer (ITA 916/Del/2022 dt. 3rd March 2023) (ITAT, New Delhi). (Page 37-40). 4. Mohammad Daud Vs ITO Ward 58(1) Delhi (ITA 1691/Del /2022 dt 22 May 2023) (ITAT New Delhi) (Page 41-43). 5. Haresh Amarsinh Zala Vs ITO (ITA 305/RJT/2019 dt. 14th Sept 2019)(ITAT Rajkot). (Page 44-47). 3. That it was first and last assessment year when he acted as agent of the Mother Dairy. The appellant hereby relied upon the following rulings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Para 9.1) (Page 46). 7. The appellant submitted reply during the assessment proceedings was based on the simple notebook maintained. The appellant did not maintain any books of account. One cannot get the books of account audited, until and unless such books are maintained. So, the question of levying penalty for not getting the books audited must not be considered in isolation. There is no mention in the assessment order (Pages 22-24) that the appellant has produced any books of accounts. The appellant hereby relied upon the following case laws: 1. Yogendera Singh Shekhwat Vs ITO (ITA 1001/JP/2016) Order dt 24th April 2017 (ITAT Jaipur) (Page 64-68) following and approving the case laws: (i) CIT Vs Bisauli Tractors (299 ITR 219) (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, after considering the nature of business of the assessee, it was found that the cash deposits are out of milk collections, however, it was observed that the assessee is earned commission income out of gross sales of Rs. 1,70,47,140/. It was noticed that the assessee has not followed the provisions of section 44AB in order to get them audited. Since, no response from the assessee penalty was levied. On careful consideration of facts on record, we observed that levy of penalty is discretion on the part of the Assessing Officer, in the current case, it is fact on record that the main income of the assessee is only earning of commission out of sales of milk, therefore, the assessee is getting only agency commission from the mother dair ..... X X X X Extracts X X X X X X X X Extracts X X X X
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