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2022 (9) TMI 248 - AT - Income TaxPenalty u/s 271B - Assessee s turnover had exceeded the prescribed limit u/s 44AB of the Act and he had failed to carry out audit u/s 44AB - HELD THAT - Pune Tribunal in the case of Banwari Sitaram Pasari HUF 2013 (1) TMI 234 - ITAT PUNE held that where assessee was engaged in online buying and selling of commodities through a commodity exchange, as a speculative activity, wherein no physical delivery was taken or given, total transactions booked with such commodity exchange could not be considered as 'turnover' for purposes of considering liability of assessee to get accounts audited under section 44AB. In the present case, in absence of the assessee causing appearance before the Revenue Authorities, either at this stage of assessment proceedings nor at the stage of penalty proceedings u/s 271B and neither at the appellate proceedings before Ld. CIT(Appeals) (It has been observed that the matter has been fixed twice before CIT(Appeals), once against the original penalty order and then subsequently again pursuant to directions of orders of ITAT and on both occasions, the assessee did not cause appearance before CIT(Appeals), and therefore, the Department did not get any opportunity to ascertain the true nature of transaction carried out by the assessee and also whether there was requirement to maintain books of accounts. Accordingly, by way of final opportunity, matter is being restored to the file of AO to decide the nature of transaction and whether the assessee was required to maintain books of accounts. The assessee is also directed to cooperate in the matter. In case of further non-cooperation on part of the assessee, AO may kindly proceed on the basis of materials available on record. Appeal of the assessee is allowed for statistical purposes.
Issues:
- Condonation of delay in filing appeal - Penalty under section 271B of the Income Tax Act, 1961 - Requirement of audit u/s 44AB of the Act - Nature of transaction - capital gains or business - Speculative or non-speculative transaction on commodity exchange Condonation of Delay in Filing Appeal: The appeal was filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-9, Ahmedabad, which was found to be time-barred by 21 days. The assessee provided a detailed explanation for the delay, citing the illness of his mother and misplacement of appeal papers by the accountant as reasons. The Tribunal, after considering the affidavit and the minor delay, condoned the delay in filing the appeal in the interest of justice. Penalty under Section 271B of the Income Tax Act, 1961: The Assessing Officer levied a penalty of Rs. 1,50,000 under section 271B of the Act on the grounds that the assessee failed to get his books audited as required by section 44AB of the Act due to the substantial turnover from business transactions through commodity exchange. The penalty was confirmed by the Ld. CIT(Appeals) despite the assessee's contentions. However, the ITAT decided to allow the appeal for statistical purposes and restore the matter to the file of the Assessing Officer to ascertain the true nature of the transaction and the necessity of maintaining books of accounts. Requirement of Audit u/s 44AB of the Act: The issue of whether the assessee was required to maintain books of accounts and undergo audit u/s 44AB of the Act was a crucial aspect of the case. The assessee argued that since he earned income from Salary, House Property, and Other Sources, he was not obligated to maintain books of accounts. The contention was supported by reference to a relevant case law. The Tribunal decided to delve deeper into the nature of the transaction and directed the Assessing Officer to determine whether there was a genuine requirement for audit under section 44AB. Nature of Transaction - Capital Gains or Business: The case involved a debate over the nature of the transaction undertaken by the assessee - whether it constituted capital gains or business activity. The Assessing Officer and the assessee presented conflicting views on this matter. The Tribunal emphasized the need to ascertain the true nature of the transaction to make an informed decision regarding the penalty under section 271B of the Act. Speculative or Non-Speculative Transaction on Commodity Exchange: Another significant issue revolved around whether the transaction on the commodity exchange was speculative or non-speculative. The Tribunal referred to relevant case laws to highlight the distinction and directed the Assessing Officer to determine the nature of the transaction. The lack of cooperation from the assessee in previous proceedings necessitated a final opportunity for the Assessing Officer to investigate and make a conclusive decision based on available records. In conclusion, the ITAT allowed the appeal for statistical purposes, emphasizing the importance of determining the true nature of the transaction and the necessity of maintaining books of accounts for imposing penalties under the Income Tax Act. The matter was remanded to the Assessing Officer for further investigation and decision-making based on the specifics of the case.
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