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TMI Blog2013 (7) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of ₹ 1,00,000/- levied by the Assessing Officer under Section 271B of the Income Tax Act. 3. At the time of hearing the assessee has raised an additional ground as under: On facts and circumstances of the case and in law, the levy of penalty u/s 271B of ₹ 1,00,000/- is unjustified as the online transaction of future commodities made by the appellant in the MCX Exchange would not form a part of turnover, accordingly the appellant was not liable to tax audit u/s 44AB of I. T. Act, 1961. 4. Since the additional ground raised by the assessee involving a legally issue which goes to the route of the matter, therefore, we first take up the additional ground. We have heard the Ld. AR as well as Ld. DR and considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has submitted that the transaction on commodity exchange without physical delivery does not form part of turnover for the purpose of section 44AB of the Act. Therefore, the authorities below have wrongly taken into account the amount of these transactions as turnover for the purpose of section 44AB. He has relied upon the following decision: _ Banwari Sitaram Pasari HUF Vs ACIT 29 Taxmann 137 (Pune-ITAT) _ Growmore Exports Ltd. Vs ACIT 72 TTJ 691 (Mum-ITAT) _ CIT Vs Growmore Exports Ltd. Appeal No. 18 to 20 of 2001 (Mombay-HC) 6. On the other hand, the Ld. DR has relied upon the orders of the authorities below. 7. Having considered the rival submission and careful perusal of relevant record, we note that the AO has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Growrnore Exports Ltd. (supra) has dealt with requirement to get the accounts audited u/s 44AB of the Act. In the case before the Mumbai Bench the assessee was engaged in the speculation transaction of sale and purchase of units without taking delivery and the account was settled by crediting the difference. The Tribunal after considering section 18 of the Sale of Goods Act 1930 observed that no property in the said units passed on to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words the finding by the Commissioner (Appeals) that the purchase was coupled with delivery has been reversed by the order of the ITAT. Nothing has been brought to our attention from the record that the said finding of reversal is perverse warranting this court to take a view different from the view taken by the Tribunal. We therefore, proceed on the footing that though there was transaction of shares it was not coupled with delivery. Once there was no delivery, the sale price of the shares could not have been considered as the turnover but only the difference between the price at which the shares were purchased and consequently sold by the broker .. Considering the findings on merits namely that there was no delivery and consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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