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TMI Blog2020 (7) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... njay Prakash vs. ITO [ 2020 (3) TMI 171 - ITAT JAIPUR] has again considered the said this issue and by following the earlier decision accepted the contention of the assessee that turnover in respect of the speculative transactions shall be positive and negative differences of the transactions and not volume of the speculative transactions. Accordingly in view of the consist view taken by this Tribunal the turnover of the assessee would not exceed the limit as provide d U/s 44AB, the penalty levied U/s 271B is deleted.- Decided in favour of assessee. - ITA No. 1093/JP/2019 - - - Dated:- 3-7-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Rajendra Agarwal (C.A.) For the Revenue : Miss. Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been reproduced by the AO at page 3 as under:- Symbols Sale Purchase Diff in Qty Profit/Loss Qty Amount Qty Amount Copper 410 126596650 410 126510850 0 85800 Crudeoil 80 27252700 80 27214100 0 38600 Gold 31 51116300 31 51421400 0 -305100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in the income tax Act for the purpose of Section 44AA and 44AB of the Act and however, the guidance note on tax audit U/s 44AB of the IT Act issued by the Institute of chartered Accountant of India (ICAI) would be relevant on this point. We find that this Tribunal in case of Shri Rajjak Ahmed Khan vs. ITO in ITA No. 1181/JP/2019 vide order dated 13.01.2020 has considered an identical issue in para 5 as under:- We have considered the rival submissions as well as the relevant material on record. The limited dispute in the case in hand is whether the provisions of section 44AB are applicable in the case of the assessee when the assessee has done the share trading in intraday segment and some of the transactions are delivery based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction of derivatives whereas assessee transacted in cash securities where non delivery based transactions are classified as speculative transactions as per section 43(5) of the I.T. Act, 1961. Accordingly assessee is liable to get his accounts audited. Looking to these facts, penalty under section 271B imposed by the Assessing Officer is confirmed. These grounds of appeal are dismissed. Once these transactions are non-delivery based intraday transactions and classified as speculative transaction as per the provisions of section 43(5) of the IT Act, then the turnover in respect of these transactions has to be determined as per the Guidance Note issued by the Institute of Chartered Accounts of India. For ready reference, we reproduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries in the books of account are made only for the differences. Accordingly, the aggregate of both positive and negative differences is to be considered as the turnover of such transactions for determining the liability to audit vide section 44AB. The turnover has not been defined in the IT Act and particularly in respect of the speculative transactions in shares and securities. Therefore, the Guidance Note of ICAI is a relevant and proper guidance for determining the turnover in respect of such speculative transactions. As it is clear from the Guidance Note issued by the ICAI that the turnover in respect of non-delivery based speculative transactions including stock and shares has to be determined by taking the aggregate of bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the IT Act is not attracted. Even otherwise, when this issue of turnover is a debatable issue and the assessee has claimed this turnover as ₹ 3,15,280.69 if computed in terms of the Guidance Note of ICAI, then the said explanation of the assessee would be regarded as reasonable and bonafide as per the provisions of section 273B of the IT Act and consequently no penalty under section 271B is leviable. Accordingly, the penalty levied under section 271B is deleted. Thus, in the above case on identical issue the Tribunal has considered the guidance note of ICAI in respect of the tax audit U/s 44AB of the Act wherein the turnover or gross receipt in respect of speculative transactions has been considered as some total of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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