9911796707
TMI Blog2022 (9) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... "1. The learned CIT(A)-V, Ahmedabad erred in law and on facts in confirming the penalty of Rs. 1,50,000/- imposed by A.O. under section 271B of the Income Tax Act, 1961, which is requested to be deleted. Your appellant prays for leave to add, to alter and /or to amend the above ground before the final hearing of the appeal." 3. At the outset, we observe that the appeal is time-barred by 21 days. The assessee has also filed an affidavit requesting for condonation of delay in filing the appeal. The reason cited by the assessee was that the order passed by the Ld. CIT(Appeals) sought to be appealed against, was handed over to the accountant of the assessee so that the same may be handed to the CA of the assessee for purpose of filing of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the information from the Department. As the transactions were huge, the assessee was asked to furnish audit report in Form 3CD for the impugned assessment year. The Ld. Assessing Officer further initiated penalty proceedings u/s 271B of the Act on the ground that the 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 of the Act. The Ld. Assessing Officer thereafter levied penalty of Rs. 1,50,000/- u/s 271B of the Act for the reason that the turnover of the assessee from business of commodity exchange was Rs. 477 crores and the assessee failed to get his books audited as provided in section 44AB of the Act. The Ld. CIT(Appeals) dismissed the assessee's appeal (which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Salary, House Property and Income from Other Sources and hence he is not required to maintain books of accounts. The assessee was under the bona-fide belief that he had entered into a capital gains transaction from which he had incurred a loss and he was not required to declare such loss in the return of income. Since the assessee is not required to maintain any books of accounts, there is evidently no requirement of audit u/s 44AB of the Act as well. The Ld. Counsel for the assessee drew our attention to page 74 of Paper-Book in the case of Bisauli Tractors 299 ITR 219 (All), in which it was held that if a person has not maintained any books of accounts, the question of audit doe not arise. Hence, no penalty can be imposed u/s 271B of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the Act. 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 under section 271B of the Act and neither at the appellate proceedings before Ld. CIT(Appeals) (It has been observed that the matter has been fixed twice before Ld. CIT(Appeals), once against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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