9911796707
TMI Blog2024 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... in rest four grounds, the assessee has challenged levy of penalty of Rs. 72,378/- u/s. 271B of the Income Tax Act, 1961. 3. Brief facts, which are relevant for adjudication of the issue are as under : 4. The assessee is a retired 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, the assessee filed appeal before ld. CIT(Appeals) and argued that the observations of the Assessing Officer that the assessee has not filed tax audit report as per Form-3CB is factually incorrect, inasmuch as the assessee has 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the ld. DR. Ld. AR also relied upon the judgment of ITAT (SMC) Bench, Jaipur in case of Bhawani Shankar Gupta vs. ITO (ITA No. 43/JP/2023) dated 22.03.2023 for the proposition that once the penalty is levied for non-maintenance of books 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 argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 723/-. Certain enquiries were made on internet and also considering the commission details furnished by the assessee as fixed by Mother Dairy on sale of milk and also considering more margin on the products other than milk, net profit rate of 1.30% has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the fact remains that the source of income of the assessee as enumerated by the Assessing Officer 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 Assessing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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