2016 (4) TMI 161 - AT - Income Tax

Penalty u/s 271B - non comply with the provisions of Section 44AB - Held that - It appears that the assessee got his accounts audited relating to regular business of manufacturing of GLS Lamps. However, no audit was got conducted in respect of the transaction relating to sale and purchase of shares. In the instant case, this contention of the assessee that the transaction relating to purchase and sale of shares resulted into short term capital loss and the transaction was involving capital assets, is not rebutted at any stage. From the above narrated facts, it is clear that the assessee got his accounts audited for the regular business relating to manufacturing of GLS Lamps and the other transaction was relating to the sale and purchase of shares which resulted into short term capital loss. In the present case, it is not brought on record to substantiate that the loss related to the sale and purchase of shares was assessed as a business loss or adjusted against the regular business income and that the shares sold by the assessee were kept as a stock-in-trade. Therefore, the provisions of Section 44AB of the Act were not applicable to the transaction relating to sale & purchase of shares and the penalty u/s 271B of the Act levied by the AO and sustained by the ld. CIT(A) was not justified, therefore, the same is deleted. - Decided in favour of assessee

Summary

Issues:
Confirmation of penalty under section 271B of the Income Tax Act, 1961.

Analysis:
The appeal was filed by the assessee against the penalty of Rs. 45,458 imposed by the Assessing Officer (AO) under section 271B of the Income Tax Act, 1961. The assessee had filed the return of income declaring Rs. 3,19,850, which was later revised to the same amount. However, the assessment was completed ex-parte at an income of Rs. 32,18,840. The AO noticed that besides the main business, the assessee was also involved in the sale and purchase of shares with a turnover of Rs. 90,91,580, and had not audited the accounts related to this activity as required by Section 44AB of the Act, leading to the penalty imposition.

The assessee contended before the ld. CIT(A) that compliance with Section 44AB was not entirely lacking but was only not feasible for a specific segment of the business. It was argued that the sale and purchase of shares were treated as involving capital assets and were not subject to tax audit. However, the ld. CIT(A) noted the absence of detailed filings regarding the share transactions and the treatment of shares in the books of accounts. It was held that the accounts related to the share trading were not audited as required by law, leading to the confirmation of the penalty.

Upon appeal, the assessee reiterated that a tax audit was conducted for the main business, and the share transactions were considered short-term capital loss involving capital assets, thus exempt from tax audit requirements. The Tribunal observed that while the main business accounts were audited, the share transactions were not audited. It was noted that there was no evidence to show how the loss from share transactions was treated and whether the shares were held as stock-in-trade. Consequently, the Tribunal concluded that the penalty under section 271B was unjustified and deleted the same, allowing the appeal of the assessee.

In conclusion, the Tribunal held that the penalty under section 271B was not justified as the share transactions resulting in short-term capital loss were not subject to tax audit requirements. The Tribunal found no evidence to support the treatment of shares as business stock or the adjustment of losses against regular business income, leading to the deletion of the penalty imposed by the AO and upheld by the ld. CIT(A).