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TMI Blog2025 (1) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... ur corners and ambit of provisions of Section 44AB, so as to determine/adjudicated the imposition of penalty u/s 271B. It is only when there is a conclusive finding of the CIT(Appeals) on the issue of business turnover or gross receipts or sales achieved by the assessee (which is disputed by the assessee before ld. CIT(Appeals)), the appeal against penalty order u/s. 271B be adjudicated accordingly by ld. CIT(A), keeping in view the threshold limit u/s. 44AB of the Act. Thus, in the interest of justice and fairness to both the parties, the appellate order passed by ld. CIT(Appeals) is set aside and the matter is restored back to the file of ld. CIT(Appeals) to adjudicate afresh. Appeal filed by the assessee is allowed for statistical purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of customers who deposited cash in the assessee s account. The assessee expressed its inability in submitting details of customers who deposited cash in the assessee s bank account, and the assessee submitted that the assessee has not maintained books for cash handling business. The Assessing Officer applied the rate of 8% on the cash deposit and accordingly computed the income of the assessee and added Rs. 44,76,376/- to the income of the assessee, vide assessment order dated 01.12.2021 passed by the AO u/s 143(3) r.w.s. 143(3A) and 143(3B). Penalty Proceedings u/s. 271B of the Act were initiated by the AO against the assessee on the ground that the assessee failed to get its accounts audited under the 1961 Act, andfailed to furnish the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When this appeal was called for hearing before the Tribunal, none appeared on behalf of the assessee. The adjournment application filed on behalf of the assessee stands rejected. 4.2 The Learned Sr. DR appeared and has filed status of the quantum appeal by way of screen shot from ITBA portal, in which it is reflected that the appeal of the assessee filed against the assessment order passed by the AO u/s. 143(3) is still pending for disposal with the ld. CIT(Appeals). Ld. Sr. DR submitted that the first appeal filed by the assessee against quantum assessment is pending before the ld. CIT(Appeals). 5. I have considered the contentions of ld. Sr. DR and perused the material on record. I have observed that the assessee filed its return of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed profit rate of 8% to the cash deposits, and made additions to the tune of Rs. 44,76,376/- as income of the assessee. The penalty proceedings u/s 271B were initiated by the AO against the assessee, for failure to get accounts audited or failed to furnish a report of such audit as is required u/s 44AB of the 1961 Act. During penalty proceedings u/s 271B conducted by the AO, the assessee submitted that the first appeal filed by the assessee against quantum assessment is pending before ld. CIT(A), and the penalty proceedings u/s 271B be kept in abeyance. The AO observed that the gross turnover/receipts of the assessee are exceeding threshold limits as prescribed u/s 44AB, and the assessee is liable to get its accounts audited u/s 44AB.The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in the first appeal. Thus, in nut-shell, the ld. CIT(A) has to first adjudicate in the first appeal filed against quantum assessment as to what is the business turnover or gross receipt or total sales from business of the assessee, and whether or not the assessee falls within the four corner and/or ambit of tax-audit as is prescribed u/s 44AB. The assessee has raised legal challenge before ld. CIT(A) that the assessee did not fall within the ambit of tax-audit u/s 44AB and hence there is consequently no default u/s 44AB, thus, no penalty is leviable u/s 271B, thus, this plea is to be adjudicated firstly by the ld. CIT(A) to give conclusive finding on the same to ascertain conclusively whether or not the assessee falls within the threshold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice are clearly breached as proper opportunity of being heard was not granted to the assessee. The assessee has also raised this ground of not providing proper opportunity of being heard and breach of principals of natural justice by ld. CIT(A), vide ground of appeal number 4 raised in the memo of appeal filed with ITAT. Thus, in the interest of justice and fairness to both the parties, it will be fit and appropriate to set aside the first appellate order passed by ld. CIT(A) confirming penalty of Rs. 1,50,000/- u/s 271B. I direct that the ld. CIT(Appeals) first adjudicate the appeal filed by the assessee against quantum assessment, and to give its conclusive finding as to the business turnover, gross receipts of sales achieved by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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