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TMI Blog2024 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... formation has been collected by the AO at the fag end of the proceedings and the same has been utilized by the AO without confronting it to the assessee. The fact remains that the source of income of the assessee as enumerated by the AO in assessment order is by way income from commission from the sale of milk and other products, which is not contradicted or disputed by the AO, even after enquiries. Therefore, whether penalty in such a case would be leviable, is a question which requires adjudication by the Bench. Having regard to the facts of the case that the assessee was distributor of Mother Dairy, retired army personnel, under the bona fide belief that no books of accounts are required to be maintained since only source of earning inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d army personnel and running a milk booth of Mother Dairy. It is the case of the Revenue that there was a cash deposit of Rs. 21,39,000/- in the bank account of the assessee maintained with State Bank of India, Dilshad Garden, New Delhi. It is the observation of the Assessing Officer that the assessee has not filed his return of income for the impugned assessment year. Accordingly, a notice u/s. 142(1) of the Income Tax Act was issued by the Assessing Officer on 23.10.2019, requiring the assessee to furnish certain information/documents. Thereafter, it is observed by the Assessing Officer that the assessee has e-filed his return of income on 24.09.2019 declaring an income of Rs. 4,47,350/-. During the course of assessment proceedings, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed tax audit report on 18.09.2019 vide acknowledgement No. 165128511180919. The assessee further contended that the audit report filed by the assessee has not been declared as invalid, though the Assessing Officer has treated the return of income filed by the assessee as invalid. These submissions of the assessee find place in the statement of facts annexed with Form No. 35 filed before ld. CIT(Appeals). Before ld. CIT(Appeals) none appeared on behalf of the assessee despite issuance of four notices by ld. CIT(Appeals). The ld. CIT(Appeals) dismissed the appeal of the assessee vide impugned order. 7. Aggrieved with the order of ld. CIT(Appeals), the assessee is in appeal before the Tribunal. 8. Before us, ld. Counsel for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of account, there cannot be a penalty u/s. 271B. Ld. AR of the assessee further argued that the assessee, being an Army Personnel, was under the bona fide belief that there is no need to file any ITR, as his business income was below the taxable limit. Ld. Counsel for the assessee pointed out that the assessee was under the bona fide belief that there is no need for maintaining any books of account. 10. After hearing the ld. AR of the assessee, Bench has given 7 days time to the ld. DR to file his arguments in writing before the Bench. Accordingly, ld. DR on 05.06.2024 filed his written synopsis along with copy of judgment of ITAT (SMC) Bench, Pune in the case of S.J. Agarwal Co. vs. ITO (2008) 114 ITD 27 (Pune)(SMC). The main contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been considered fit for a milk booth/milk products seller as in the case of the assessee. Perusal of above observation of the Assessing Officer would prima facie prove that source of income of the assessee by way of commission earned on sale of milk products and other products as fixed by mother dairy, on which the Ld Assessing Officer has applied net profit @1.3% on the turnover. The Assessee was also under the belief that the assessee is not subject to tax audit under section 44AB, and if the income of assessee as explained by the assessee and also after conducting enquires by the Assessing Officer has arisen by way of commission on sale of milk and other prodcucts as fixed by mother diary then the income of the assessee would go below t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer, even after enquiries. Therefore, whether penalty in such a case would be leviable, is a question which requires adjudication by the Bench. Having regard to the facts of the case that the assessee was distributor of Mother Dairy, retired army personnel, under the bona fide belief that no books of accounts are required to be maintained since only source of earning income was commission as fixed by Mother Diary on sales of milk and other products, and there is no need of any audit of accounts appears to be bona fide belief of the assessee. We are of the view that penalty is not leviable. 14. Section 273B of the Income Tax Act has categorically provided immunity from penalty u/s. 271B to those assessees who establish, having regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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