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TMI Blog2014 (11) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the said tax audit report, it cannot be held that there was default of not getting the accounts audited. In the present case, admittedly the assessee did not claim loss on share transactions in its return of income on account of bona fide belief that the transactions with India Bulls Securities Ltd. were investment transactions. The assessee was under bona fide belief that it was not in share trading business because his main business was advertising etc., as is evident from the tax audit report. Under such circumstances, we are of the opinion that the penalty is not exigible in the present set of facts. Accordingly, we cancel the penalty levied u/s 271B. - Decided in favour of assessee. - ITA No. 4305/Del/2011 - - - Dated:- 14-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no sales were declared by the assessee in his profit loss account. However, the same are treated as business transaction as per section 43(5) of the IT Act, 1961. 2. Assessee has purchased and sold certain shares on delivery basis. 3. Assessee ah indulged into day trading in which no share delivery were made and specifically defined as Speculative Transaction in Section 43(5) of the IT Act, 1961. 2.2. From the copy of account filed by the assessee, the AO observed that sales of Future and Options amounting to Rs. 4,56,10,252.40 had been made by the assessee, which were business receipts but not included and shown by the assessee and no tax audit report had been submitted by the assessee of these business receipts. Accordingly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first time he had committed this default. The assessee had acted in bona fide belief and had no dishonest intention in not obtaining audit report for all the three businesses carried on by him. The Tribunal had rightly cancelled the penalty. 3.2. Ld. counsel also relied on the order of ITAT in the case of Mohan Lal Ashok Kumar v. ITO 1 ITR (Trib) 103 (Del.), wherein the AO levied penalty u/s 271B of the I.T. Act, 1961, on the ground the assessee failed to get his accounts audited u/s 44AB of the Act even though his gross turnover exceeded Rs. 40 lacs. The CIT(A) confirmed the penalty levied by AO. In second appeal, the ITAT deleted the penalty, holding as under: Held, allowing the appeal, that the amount of arhat commission and inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee had not disclosed about the activity in return of income and, therefore, the audit report was not complete. 5. We have considered the rival submissions and have perused the record of the case. As per section 44AB the assessee is required to get his accounts audited if the particular criteria as prescribed in the section is fulfilled. Once the accounts are audited u/s 44AB, in any view of the matter, merely because a particular item of income has not been included in the said tax audit report, it cannot be held that there was default of not getting the accounts audited. In the present case, admittedly the assessee did not claim loss on share transactions in its return of income on account of bona fide belief that the transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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