9911796707
TMI Blog2013 (1) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... so inclined to hold that there was no turnover constituted in the amount of Rs. 1,86,66,488/- for the purposes of considering the liability of assessee to get the accounts audited u/s 44AB and hence, there was no requirement to get the accounts audited u/s 44AB. Thus, the penalty u/s 271B imposed by the AO is hereby directed to be deleted - in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ng confronted, the assessee got his accounts audited and submitted the Audit Report on 12-11-2008 during the course of assessment proceedings. However, in the proceedings initiated u/s 271B of the Act, the Assessing Officer held the assessee guilty for not getting the accounts audited and furnished the report within the prescribed period and levied penalty of Rs. 93,332/- equivalent to ½% of the total turnover of the commodity exchange shown by the assessee at Rs. 1,86,66,488/-. The CIT(A) has also upheld the penalty against which the assessee is in further appeal before us. 4. Before us, the learned counsel for the assessee pointed out that failure to get the accounts audited in terms of section 44AB of the Act was primarily on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontroversy revolves around as to whether the assessee was indeed liable to get his accounts audited u/s 44AB of the Act on the ground that its turnover from the commodities by booking of sauda with commodity exchange stood at Rs. 1,86,66,488/-? In this connection, it is noted that the assessee is engaged in the business of on-line trading of commodities and in this speculation activity, there is no physical delivery of commodities given or taken. Whether there was any element of 'turnover' in such activity is the bone of contention between the assessee and the Revenue. In somewhat similar situation, our co-ordinate Bench of Mumbai Tribunal in the case of Growmore Exports Ltd. (supra) has dealt with requirement to get the accounts audited u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee never took delivery of the units as observed by the CIT(A). The contract note clearly specifies the date of delivery as 30-9-1989. Even otherwise there is no evidence to show that assessee in fact obtained delivery thereof. Thus the units contracted to be bought were future goods and were unascertained. As per Section 18 of the Sale of Goods Act, no property in the goods is transferred to the buyer unless and until the goods are ascertained. Therefore, when the assessee had contracted to buy the units, no property in the said units had passed to the assessee. As a result, it cannot be said that actual purchase as contemplated under the Sale of Goods Act was ever effected. And if the assessee never acquired property in the uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get the accounts audited under Section 44AB of the Act and hence the penalty confirmed by the CIT(A) is deleted." 7. In the present case also, the transaction of buying and selling of commodities is a speculative activity where no physical delivery is taken or given and in this view of the matter, following the parity of reasoning given in the case of Growmore Exports Ltd. (supra), herein also we are inclined to hold that there was no turnover constituted in the amount of Rs. 1,86,66,488/- for the purposes of considering the liability of assessee to get the accounts audited u/s 44AB of the Act and hence, there was no requirement to get the accounts audited u/s 44AB of the Act. Thus, the penalty u/s 271B imposed by the Assessing Officer is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
