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TMI Blog2016 (8) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... r under consideration have been set by the statute at Rs. one crore. The occasion for imposing penalty under section 271B did not arise. In such a situation, where the assessee does not hold any professional medical qualification, we do not see how it can be held that the assessee is carrying on a profession as the venture carried on with the help of technically qualified people necessarily would fall in the category of "carrying on business" wherein the statutory threshold for getting accounts audited has been fixed at Rs. one crore. Accordingly, we find that in the facts of the present case, considering the claim of the assessee put forth before the Commissioner of Income-tax (Appeals) stated to have been identically made before the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That the order passed by the learned Commissioner of Income- tax (Appeals) confirming the penalty is perverse in law and on facts. 4. That the appellant seeks leave to add, amend, alter, abandon or substitute any of the above grounds during the hearing of the appeal. 2. The relevant facts of the case are that the assessee declared an income of ₹ 4,15,000. The Assessing Officer taking note of the fact that the accounts of the assessee were not audited, initiated penalty proceedings under section 271B. Finding that the assessee was a doctor by profession and she had received professional receipts amounting to ₹ 42,57,882 from the profession referring to section 44AB of the Income-tax Act, 1961, he required the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that she is not a doctor and the explanation offered before the Assessing Officer has been repeated and without discussing the issues the Commissioner of Income-tax (Appeals) has confirmed the penalty order. It was submitted that all along the assessee right from before the Assessing Officer has pleaded that the assessee is an unqualified person who has opened an X-ray-cum-pathological laboratory with the help of technicians, etc. It was submitted that she has also argued that she is not a qualified medical professional as such she is not required under the Income-tax Act to get her accounts audited as her receipts are business receipts and not professional receipts wherein the statutory limit set is of Rs. one crore for getting the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required under section 44AB, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum equal to one-half per cent. of the total sales, turnover or gross receipts, as the case may be, in business, or of the gross receipts in profession, in such previous year or years or a sum of one hundred fifty thousand rupees, whichever is less. 8.1. Section 44AB of the Income-tax Act, 1961, whose violation invites penalty under section 271B reads as under : 44AB. Audit of accounts of certain persons carrying on business or profession.-Every person,- (a) Carrying on business shall, if his total sales, turnover or gross receipts, as the case may be, in business exceed or exceeds one crore rupees in any previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s consistent claim has not been rebutted by the Revenue either by any finding or by way of any evidence. We find no good reason on record why the said claim of the assessee should not be accepted. In the absence of any rebuttal thereon, considering the above statutory requirements in the facts and circumstances of the case, we are of the view that without first holding that the assessee was a professionally qualified medical doctor the Revenue cannot avoid the conclusion that the receipts from the pathological laboratory have to be considered as business receipts, as for earning professional receipts holding of a professional qualification would be sine qua non. The threshold limit for getting accounts audited in the case of business receip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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