2019 (8) TMI 453 - AT - Income Tax

Penalty u/sec. 271B - whether 271B levied by the Assessing Officer is correct or not ? - assessee has received advance on account of selling of immovable property as capital gains or business transaction - HELD THAT - It is a fact that the assessee had entered into only a single transaction. It is also a fact that she has bonafide belief that the transaction entered into by her leads to capital gains and not business transaction. It is also a fact that during the year under consideration, the assessee entered into a single transaction though the amounts received by her attracts the provisions of section 44AB. Under these facts and circumstances of the case, we are of the opinion that the explanation given by the assessee is bonafide and also justified, no penalty can be levied u/sec. 271B of the Act. In a similar circumstances, the coordinate bench of the tribunal in the case of K.V.V. Prasad 2019 (6) TMI 1095 - ITAT VISAKHAPATNAM who is also entered into agreement along with the assessee, held that no penalty can be levied u/sec. 271B. - Decided in favour of assessee.

Summary

Issues:
Assessment of income as business income instead of capital gains, imposition of penalty under section 271B for non-auditing of accounts as per section 44AB.

Assessment of Income as Business Income:
The case involved the assessee receiving an advance for selling immovable property, claiming it as capital gains, but the Assessing Officer treated it as business income due to the property being in litigation. The Commissioner of Income Tax (Appeals) upheld this decision, citing the assessee's history of similar transactions. However, the assessee argued that the transaction was a one-time sale resulting in capital gains, not business income. The tribunal noted that the assessee's belief was genuine and justified, especially as it was a single transaction. Citing a similar case where no penalty was levied, the tribunal ruled in favor of the assessee, emphasizing the absence of evidence supporting business activities or complexity in the transaction.

Imposition of Penalty under Section 271B:
The Assessing Officer imposed a penalty under section 271B for the assessee's failure to audit accounts as required by section 44AB. The AO contended that the transaction was a business deal, necessitating audit. However, the tribunal disagreed, highlighting that the single transaction did not involve a series of deals and the assessee, a mechanical engineer, was not engaged in regular business activities. The tribunal found the assessee's belief that the transaction was capital gains reasonable, leading to the non-audit of accounts. Relying on the ITAT decision and lack of evidence supporting business activities, the tribunal canceled the penalty, emphasizing the absence of a justifiable cause for auditing in this specific case.

In conclusion, the tribunal ruled in favor of the assessee, overturning the assessment of income as business income and canceling the penalty under section 271B. The decision was based on the genuine belief of the assessee regarding the nature of the transaction, the absence of evidence supporting business activities, and the reasonable cause for not auditing accounts.